Town of Westerlo Albany County, NY

Eight Mile Creek Farm and Surrounding Area, Westerlo, NY Photo courtesy of P. Schreiber

Shale Gas Development Impacts and Local Zoning Options

April 4, 2015

Zoning Recommendation Committee – Full Report This page left blank. Table of Contents 1.Executive Summary...... 5 2.Introduction ...... 8 2.1 Background and Purpose...... 8 2.2 Objectives: The Town Board Charge to the ZRC...... 8 2.3 Scope...... 8 2.4 Methods...... 9 3.Levels of Regulatory Jurisdiction...... 11 3.1 Who Regulates What?...... 11 3.2 Federal Environmental Regulation...... 13 3.3 New York State Authority: OSGML, State Preemption and Municipal Home Rule ...... 16 3.3.1 NYSDEC Revised DSGEIS...... 17 3.4 Preemption Thwarted in Pennsylvania...... 17 3.5 Local Authority: Municipal Home Rule Law...... 18 4.History of Regulatory Compliance...... 19 4.1 Private Drinking Water Well Contamination in PA...... 19 4.2 SGD Industry Violations in PA...... 22 4.2.1 Infrastructure Violations: Iroquois Gas Pipeline...... 24 5.Local Government Options in NY...... 26 5.1 Municipal Home Rule Law...... 26 5.2 Land Use Planning and Zoning Law ...... 26 5.3 Land Use Regulations and The Comprehensive Plan...... 28 5.4 Bonding...... 29 5.4.1 Exposure Checklist ...... 29 5.5 Municipal Tools and Actions ...... 31 6.Regional Trends...... 37 6.1 New York State Actions...... 37 6.1.1 2014 Department of Health Report & Ban Recommendation ...... 37 6.1.2 NYS Supreme Court upholds Towns of Dryden & Middlefield Zoning Amendments...... 38 6.1.3 Health Care Professionals call for 3-5 year ban...... 38 6.2 Albany County Actions...... 38 6.2.1 Local Law C of 2013: Prohibiting HVHF brine on Albany County roadways and in waste water treatment plants in Albany County ...... 38 6.2.2 Local Law D of 2014: Prohibiting the disposal of SGD/HVHF brine and waste in Albany County Solid Waste Management Facilities...... 39 6.3 Neighboring Hilltown Actions...... 40 6.3.1 Town of Berne...... 40 6.3.2 Town of Knox...... 40 6.3.3 Town of Rensselaerville...... 40 6.4 Other Regional Actions...... 41 6.4.1 Town of Guilderland ...... 41 6.4.2 Delaware County Board of Supervisors Actions...... 41 6.4.3 Schoharie County Board of Supervisors Actions...... 42 7.Major Findings – Local Impacts...... 43 7.1 Community Character – Westerlo's Rural/Agricultural Identity...... 43 7.1.1 Industrializing Impacts to Rural/Agricultural Community Character ...... 45 7.1.1.1.SGD/HVHF Wells and Industrial Infrastructure Expansion...... 46 7.1.1.2.Local and Interstate Pipeline Expansion ...... 47 7.1.1.3.Map of TGP/Kinder Morgan NED Pipeline Project...... 49 7.1.1.4.Pipeline Fire Safety Concerns...... 50 7.1.1.5.Pipeline Valve Stations...... 52 7.1.1.6.Compressor Stations...... 52 7.1.1.7.Liquified Natural Gas (LNG) Facilities...... 54 7.1.1.8.LNG Safety Concerns ...... 55 7.1.1.9.Compressed Natural Gas (CNG) Facilities...... 56 7.1.1.10.Liquified Petroleum Gas (LPG) Facilities...... 56 7.1.1.11.Material Storage Yards...... 56 7.2 Social Impacts...... 57 7.3 Air Quality and Atmosphere ...... 59 7.3.1 New York State Air Quality Tracking...... 59 7.3.2 Local Air Pollution...... 61 7.3.3 Sand Dust (Crystalline Silica) – A Respiratory Hazard ...... 62 7.4 Water Resources ...... 64 7.4.1 NYSDEC Classification of Waters...... 64 7.4.2 Albany County Watersheds ...... 65 7.4.2.1.The Middle Hudson Watershed ...... 65 7.4.3 Bear Swamp...... 68 7.4.4 Flood Zones...... 69 7.5 Local Water Resources – Potential Impacts...... 71 7.5.1 Water Contamination...... 72 7.5.2 Water Extraction ...... 73 7.5.3 Limits of Water Treatment...... 74 7.5.4 Water Testing and Monitoring...... 75 7.5.4.1.A Town Water Testing Plan...... 76 7.5.4.2.Baseline Water Testing...... 77 7.5.4.3.Ongoing Water Monitoring – A Hardship Expense for Property Owners ...... 78 7.6 Agriculture ...... 79 7.6.1 Agriculture in Albany County ...... 79 7.6.1.1.Status of Agriculture in Albany County: 2002 Census ...... 79 7.6.1.2.Agricultural District #2 Map: includes Westerlo ...... 81 7.6.2 Potential Impacts of HVHF on Agriculture in Westerlo...... 82 7.6.2.1.Soil Contamination and Compaction ...... 82 7.6.2.2.Health Effects...... 83 7.6.2.3.Water Contamination...... 83 7.6.2.4.Livestock Damage...... 83 7.6.2.5. Water Usage...... 84 7.6.2.6.Food Safety...... 84 7.6.2.7.Summary...... 85 7.6.3 Impacts of SGD/HVHF Infrastructure on Agriculture ...... 85 7.7 Property...... 87 7.7.1 Forced Pooling: “Compulsory Integration”: A Form of Eminent Domain ....87 7.7.2 Split Estate and Mineral Rights...... 88 7.7.3 Property Values...... 89 7.7.4 Mortgages, Title and Homeowner's Insurance...... 90 7.7.5 Liability Insurance...... 93 7.8 Roads and Trucking...... 94 7.8.1 NYSDEC Estimates of Truck Trips per Wellbore...... 95 7.8.2 Estimates of Loads and Truck Trips from Other Sources:...... 95 7.8.3 Other Transportation Impacts: Crystalline Silica Dust...... 98 7.9 Waste Management...... 99 7.9.1 HVHF Waste Disposal Methods...... 99 7.9.1.1.Road Spreading in NY...... 100 7.9.1.2.SGD/HVHF Waste Treatment Options...... 101 7.9.2 SGD/HVHF Waste from PA in NY ...... 102 7.9.2.1.NY Facilities that Accept PA HVHF Waste ...... 103 7.10 Ecosystems and Biodiversity ...... 107 7.11 Outdoor Recreation ...... 108 7.12 Earthquakes and Seismic Activity...... 109 7.12.1 SGD/HVHF Related Earthquakes...... 112 7.13 Public Health and Safety...... 115 7.13.1 NYSDOH Public Health Review Major Findings ...... 115 7.13.2 SGD/HVHF Chemicals...... 115 7.13.3 Radioactive Material...... 117 7.13.4 Health Impacts from HVHF Well Additives and Hazardous Waste...... 118 7.13.5 Noise ...... 123 7.13.6 Odor and Light Pollution ...... 124 7.13.7 Health Care Systems, Accidents & Emergency First Responders...... 125 7.13.7.1.Traffic and Accidents...... 126 8.Other Findings: Permit Jurisdiction and Local Authority ...... 127 9.Conclusions...... 128 9.1 Compliance with the Westerlo Comprehensive Plan...... 129 10.Recommendations...... 130 10.1 Primary Recommendation: A Carefully Customized Zoning Amendment...... 130 10.1.1 A Simple and Effective Zoning Amendment: Prohibited Uses...... 131 10.1.2 Example: Text of Town of Dryden, NY Zoning Amendment ...... 132 10.2 Alternative Recommendation: Protection of Rural Environment Law...... 134 10.3 Other Recommendations: Create an Economic Development Team...... 134 11.Actionable Items: Sample Town Board Resolutions...... 136 11.1 Resolution #1: Create A Carefully Customized Zoning Amendment...... 136 11.2 Resolution #2: Create an Economic Development Team...... 140 12.APPENDIX: Shale Gas Development - Overview of HVHF ...... 142 12.1 Introduction ...... 143 12.2 Road and Well Pad Construction ...... 143 12.3 Drilling...... 143 12.4 Casing and Perforating...... 143 12.5 Hydraulic Fracturing and Completion...... 144 12.6 Production, Abandonment and Reclamation...... 145 12.7 Potential Environmental Impacts Associated with Shale Gas Development...... 145 12.7.1 Life-Cycle Greenhouse Gas (GHG) Emissions...... 145 12.7.2 Local Air Pollution...... 147 12.7.3 Water Consumption...... 147 12.7.4 Water Quality...... 148 12.7.5 Induced Seismicity...... 149 12.7.6 Community Impacts...... 149 12.8 NYSDEC Maps of Shale Gas Reserves in NY – Marcellus...... 155 12.9 NYSDEC Maps of Shale Gas Reserves in NY – Utica...... 157 13.APPENDIX: SGD/HVHF Buildout - Infrastructure Expansion...... 160 13.1 Near the Well - Gathering Lines and Raw Gas Processing...... 160 13.2 Midstream Processing...... 160 13.3 Interstate Pipelines ...... 160 13.4 Compressor Stations...... 164 13.5 Valve Stations...... 165 13.6 Liquified Natural Gas (LNG) Facilities...... 165 13.6.1 LNG Safety...... 165 13.6.2 LNG Contaminants...... 166 13.6.3 LNG Security Risks...... 166 13.6.4 The Relationship Between LNG and SGD/HVHF...... 167 13.7 Compressed Natural Gas (CNG)...... 167 13.8 Liquid Propane Gas (LPG)...... 168 14.APPENDIX: HVHF Well Additives and Hazardous Waste ...... 169 14.1 SGD/HVHF – What goes down the well?...... 169 14.1.1 Water ...... 169 14.1.2 Proppants...... 169 14.1.3 Chemicals...... 169 14.2 SGD/HVHF -What Comes Out of the Well?...... 180 14.2.1 Flowback Water with Chemicals, Concentrated Brine and Radioactive Materials...... 180 15.APPENDIX: PA DEP - Private Water Well Contamination ...... 182 16.APPPENDIX: Examples of NYS Zoning Amendments and Local Laws...... 191 16.1 Example: Text of Town of Roseboom, NY Protection of Rural Environment Law ...... 191 16.2 Example: Text of Town of Tusten, NY Waste Management Amendment ...... 201 16.3 Road Use Law – Text of Chenango County Guide ...... 207 16.4 Example: Text of Town of Tusten, NY Road Use Resolution ...... 209 16.5 Example: Text of Town of Tusten, NY Road Use Law ...... 211 16.6 Example: Text of Town Windsor, NY Noise Law ...... 222

Note: Direct source quotes are italicized in document unless otherwise noted. Executive Summary

1. Executive Summary

Description Purpose Evaluate how local impacts of Shale Gas Development (SGD), which include high volume hydraulic fracturing (HVHF), could affect Westerlo and whether zoning amendments are needed to maintain and support the character of the Town and the way of life of its residents. Methods ZRC used the direction from the town board, the Westerlo Comprehensive Plan, the NYS Department of Health SGD/HVHF Public Health Report, literature search, expert consultants, interviews and SGD/HVHF conference attendance for our evaluation. Major Findings • SGD/HVHF would industrialize our rural/community character. • Impacts would vary depending on the type and scale of SGD processes. • SGD infrastructure expansion (pipelines, compressor stations, Liquified Natural Gas (LNG) facilities, storage yards, etc.) could affect Westerlo even if HVHF is banned in NYS. • SGD/HVHF waste disposal could affect Westerlo even if HVHF is banned in NYS because SGD/HVHF waste is allowed to be imported to NYS waste management facilities. ◦ SGD waste contains toxic chemicals and concentrated salts and may contain radioactive material that exceeds EPA levels. • SGD water withdrawal for out-of-state HVHF and for local/regional pipeline expansion (hydrostatic testing) could affect Westerlo. • SGD industry is exempt from major environmental regulations and is not required to disclose the chemicals used. SGD/HVHF has affects on human and animal health due to: ◦ Exposure to contaminated air, water, and soil. ◦ Stressors such as noise, light pollution, odors, etc. ◦ Industrial and traffic hazards and accidents and traffic congestion affecting residents and local businesses. • Increased individual and communal health care costs. • Increased need for first responders (police, fire, rescue, EMTs). • SGD/HVHF impacts farming and rural/agricultural character. • SGD processes are exempt from major environmental regulations • SGD processes affect private property in several ways: ◦ Forced pooling (“Compulsory Integration”) of acreage into HVHF drilling units. ▪ One leasing landowner with 60% of a 640 acre drilling unit (384 acres) can prevail over the other 40% of

5 Executive Summary

Description landowners who do not want to lease their land for HVHF ◦ Residential Lending: ▪ Failure to meet federal (FHA, HUD, Fannie Mae, Freddie Mac) lending criteria, which are the standards lenders use. ▪ Mortgage callbacks for immediate balance payment. ▪ Denial of new construction mortgages and/or refinancing. ▪ Denial of mortgages, home equity lines of credit, etc. to neighboring properties. ▪ Cash only buyer pools. ◦ Voided Title insurance due to commercial activity. ◦ Homeowner's Insurance exclusions for commercial activity, hazardous materials, earthquakes, etc. ◦ Liability Insurance (e.g. Umbrella policy) limits and exclusions. ◦ Lowered property assessments and impact on tax base. ◦ “Nuisance” lawsuits from owners of neighboring properties whose land is affected or who cannot get financing because of their proximity to SGD processes. ◦ Inability to recoup losses for incidents over which the landowner has no control: chemical spills and other surface contamination, industrial accidents, earthquakes, etc. Even if a landowner has the financial resources to litigate, the contractors responsible for these problems often dissolve their LLCs and cannot be sued. • Road and bridge damage from heavy truck traffic. • Increase in vehicle accidents, including those involving aggressive driving, DUI and DWI. • Impacts to recreation, including hunting, fishing, etc. and the safety of wild food. • Ecosystem and biodiversity impacts due to habitat fragmentation and contamination, as well as disturbances such as noise, light pollution, seismic and other disrupting vibrations, etc. Conclusions • SGD/HVHF is incompatible with the key objectives of the Comprehensive Plan and with the goals mentioned in the town board's charge to the committee. • Relying on state-level authority jeopardizes those objectives and goals by passively complying with provisions over which the Town has no control. • NY towns may use the authority of Municipal Home Rule to prohibit heavy industrial activity. • A stronger local economy that finds ways to preserve rather than sacrifice our rural/agricultural community character would provide better immunity to heavy industry pressures, more opportunities for residents, and more support for town services.

6 Executive Summary

Description Recommendations 1) Westerlo can best accomplish the goals of: “maintain[ing] and support[ing] the rural character of the Town”, promoting the health, safety and welfare of the community, and supporting the key objectives of the Comprehensive Plan, by employing expert, experienced, pro-bono legal assistance to: • Review Westerlo's Comprehensive Plan and Zoning Law and ◦ Draft a single, carefully customized zoning amendment ◦ Accompanied by relevant, legally defensible findings that ◦ Address the heavy industrial impacts of SGD/HVHF on the Town Such an amendment would be simple, easy to understand and administer, and address all the industrializing impacts of SGD/HVHF including well-drilling, infrastructure expansion, waste management and storage yards, without creating specific restrictions on other kinds of commercial development or imposing onerous road use or noise laws.

An example of such an amendment is included in the Recommendations Section.

2) Create an Economic Development Team that supports the objectives of the Comprehensive Plan and the infrastructure and types of commercial development it mentions.

7 Introduction

2. Introduction

2.1 Background and Purpose

The Westerlo Town Board created the Zoning Recommendation Committee (ZRC) to evaluate how local impacts of Shale Gas Development (SGD) could affect our community and whether zoning amendments are needed to “maintain and support the character of the Town and the way of life of its residents”.

2.2 Objectives: The Town Board Charge to the ZRC

At the September 10, 2014 meeting, the Westerlo Town Board charged the ZRC as follows: 1. “Review current zoning laws and permit process with respect to potential applications for natural gas drilling activities within or affecting the Town of Westerlo.”

2. “Determine what, if any, amendments or revisions should be considered to the current zoning regulation to address land use controls that maintain and support the character of the Town and way of life of its residents. All facets of hydraulic fracturing should be considered with attention to: a.) The transport, storage and disposal of chemicals associated with hydraulic fracturing, b.) The maintenance and protection of the Town's infrastructure. c.) Traffic control. d.) Public safety. e.) legality and enforceability.”

3. “If it is the recommendation of the ZRC to revise or amend the current regulation, the committee is asked to provide specific changes in a form suitable for adoption to the Town Board not later than February 3, 20151 accompanied by a written rationale supporting their recommendations.”

2.3 Scope

The ZRC was guided in it's scope by the Town Board's charge to the committee and by the key objectives in Westerlo's Comprehensive Plan2. The ZRC studied the potential impacts of SGD processes, which include high volume hydraulic 1 At the January 6, 2015 town board meeting the ZRC was granted an extension to April 2015 2 Town of Westerlo, Albany County, New York, Comprehensive Plan, May 2014

8 Introduction fracturing (HVHF), commonly called hydrofracking, infrastructure build-out (pipelines, compressor stations, storage yards, Liquified Natural Gas (LNG )facilities, etc.), and waste management, on Westerlo's rural/agricultural community character and the health and safety of our residents. We looked at how SGD/HVHF operations might affect at-risk populations, farming, truck traffic and vehicle accidents, emergency first responders, crime, noise, odors, property values, resale, mortgages and insurance. We also considered regional impacts to the watershed that supplies the City of Albany with drinking water and provides the general public with access to fishing and other recreational activities.

2.4 Methods

The ZRC held weekly public meetings and:

• Reviewed the Town of Westerlo Comprehensive Plan relative to SGD/HVHF issues.

• Employed literature search, primarily from online sources, concentrating on Marcellus Shale, which underlie Westerlo. The potential for exploiting the deeper Utica Shale, also underlying Westerlo, was not examined by the ZRC.

• Conducted interviews by phone, email, and in person with individuals who have specific and relevant knowledge.

• Consulted with the Executive Director for The Center for Sustainable Rural Communities, and invited the Planning Board and Zoning Board of Appeals to attend a question and answer session with him.

• Researched the zoning laws of other NY towns, recent legal decisions, and spoke with attorneys specializing in land use issues and local law as related to SGD/HVHF.

• Two members attended an all-day conference in Ithaca dedicated to SGD/HVHF community impacts.

• Incorporated the findings of the December 2014, New York State Department of Health (NYSDOH) Public Health Review3 into our study. We looked at how the NYSDOH

3 NYS DOH Report, “A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development”, 2014

9 Introduction recommendation to ban HVHF in NYS might impact ZRC findings regarding SGD/HVHF in Westerlo and concluded:

• The full scope and impact of the NYSDOH recommendation will not be known until the NYS Department of Environmental Conservation (NYSDEC) revises its Supplemental Gas and Oil Environmental Impact Study (SGEIS) to include the NYSDOH findings, and decides how it will administer the details and the duration of a HVHF ban.

• The NYSDEC may or may not address aspects of SGD related to HVHF, such as water withdrawal, waste disposal and distributive infrastructure build-out (e.g. pipelines, compressor stations, etc. On January 28, 2015, however, NYSDEC published finalized regulations that would allow Liquified Natural Gas (LNG) facilities, another aspect of SGD infrastructure buildout, in the state. LNG had been effectively banned in NY since 1973, when an explosion at a LNG storage facility on Staten Island killed 40 people.

10 Levels of Regulatory Jurisdiction

3. Levels of Regulatory Jurisdiction

One of the issues raised by SGD/HVHF is which level of government has authority over which aspects of the practice. The issue is complicated because the risks associated with SGD/HVHF raise concerns of federal, state, and local importance and fit within existing regulatory regimes of each of these levels of government. Some of these regimes overlap and some are contradictory.

3.1 Who Regulates What?

Terms used in this section

Acronym Description Agency USDOS United States Department of State

EPA Environmental Protection Agency (Federal)

FERC Federal Energy Regulatory Commission

DEC New York State Department of Environmental Conservation

PSC Public Service Commission Review NEPA National Environmental Policy Act (FERC review)

SEQR State Environmental Quality Review (DEC review)

TITLE V DEC Air Quality Permit process

Article VII Article VII of NY Public Service Code (PSC review)

Gas Storage Underground Depleted oil or gas fields, aquifers, or salt caverns used to store natural gas

CNG Compressed Natural Gas (Tanks containing natural gas at high pressure)

LNG Liquified Natural Gas (Tanks containing natural gas liquified by very low temperature) LPG Liquified Petroleum Gas (Tanks containing propane and/or butane liquified by moderate pressure)

11 Levels of Regulatory Jurisdiction

Jurisdiction over SGD Processes4 SGD Element Agency Review/Permit HVHF permits, well siting, and related processes DEC SEQR International Pipelines USDOS ? Interstate Pipelines & Connections between Interstate Pipelines FERC NEPA Intrastate Pipelines except for : PSC Article VII Unregulated Pipelines: No Article VII Review Under 125 PSI or Under 1000 ft or “Gathering Lines” (well to processor) Compressor Stations (On FERC regulated pipelines) FERC Compressor Stations (On PSC regulated pipelines) PSC Compressor Station Air Permits DEC Air Permit Air Quality Emissions Control - Stationary Source Air Permits EPA Varies from Small sources Register with DEC; no ENB notice delegates registration Medium sources State Facility Permit; maybe ENB notice to only to Large sources Title V Facility Permit; ENB notice DEC Title V Permit (ENB=Environmental Notice Bulletin) Permit Process: Draft Permit → Comment Period → Final Permit Final Permit → EPA Review → Permit Issued Waste Disposal: Water treatment plants DEC Permit Permit needed for HVHF wastes Waste Disposal: Landfills DEC DEC No permit needed for Marcellus drill cuttings Waste Disposal: Injection wells EPA UIC Underground Injection Control (UIC) Permit Waste Disposal: Injection wells DEC SPEDES State Pollution Discharge Elimination System Permit Waste Disposal: Brine Spreading DEC BUD Beneficial Use Determination (BUD) needed Underground Gas Storage (When part of interstate commerce) FERC Underground Gas Storage (When not part of interstate commerce) State CNG – Fire and safety codes, local codes State/ Local LNG (Import/Export terminals) FERC LNG (When storage part of interstate commerce) FERC LNG (When not regulated by FERC) DEC LPG (Salt cavern only?) DEC

4 Podulka, W., Presentation,at conference: Protecting Communities from Fracking's Collateral Damage, Nov 2014

12 Levels of Regulatory Jurisdiction

3.2 Federal Environmental Regulation

The current federal regulatory system is both fragmented and incomplete. The following table is extracted from “Hydrofracking: State Preemption, Local Power, and Cooperative Governance”5 (Direct source text in this table not italicized.)

Summary of Federal Regulatory Authority

Federal Law Purpose Limitations Safe Drinking Water Act Ensure the integrity and safety of Underground Injection Control (SDWA) public water for human (UIC) standards apply only to 1972 consumption, focusing particularly drilling operations injecting diesel on toxic substances. fuel Clean Water Act Eliminate the discharge of Powerless to address the potential (CWA) pollutants into navigable waters” contamination resulting from water and to attain a level of water quality migrating to the surface waters that “provides for the protection after being injected into the ground and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water. Clean Air Act (CAA) Grants the EPA the authority to SGD/HVHF operations involve the 2012 regulate emissions from stationary emission of a variety of volatile sources such as gas wells.. With organic compounds (VOCs) and respect to emissions from fracking methane: pollutants that are operations, the EPA has the harmful to public health and authority to demand reductions in worsen climate change. CAA scope Hazardous Air Pollutants63 and is confined to the well pad point VOCs, including methane. The CAA source. sets National Ambient Air Quality Standards (NAAQS) and seeks nationwide attainment through both technology-based and health- based standards. The Comprehensive Commonly referred to as the Explicitly excludes “petroleum, Environmental Response, “Superfund,” is a retrospective law including crude oil . . .natural gas, Compensation, and Liability Act that grants the EPA authority to [and] natural gas liquids” from the (CERCLA) require the cleanup of hazardous definition of “hazardous substance.” waste sites, and hold polluters strictly liable for cleanup cost. Despite the “petroleum exception,”

5 Hydrofracking: State Preemtion, Local Power, and Cooperative Governance, John R. Nolon and Steven Gavin, Case Western Reserve Law Review, Volume 63, Issue 4, 2013

13 Levels of Regulatory Jurisdiction

Federal Law Purpose Limitations It supports remedial actions taken the EPA may have authority to by government entities, and impose future liability upon oil and establishes a process by which gas drillers for remediation costs federal and state governments, for contamination because fracking along with private parties, can fluid contains non-petroleum bring suit against “potentially substances. responsible parties” (PRPs) for the release of a “hazardous substance. The Resource Conservation and Grants the EPA the authority to Oil and gas waste is exempted from Recovery Act regulate all aspects of hazardous the “cradle-to-grave” waste (RCRA) waste generation, transportation, management scheme of RCRA 1976 treatment, storage, and disposal. RCRA is complimentary to CERCLA: the former is a preventative “cradle-to-grave” statute and the latter is a remedial statute. Among other related requirements, RCRA creates disclosure and safety standards meant to encourage the reduction of such waste and the use of nontoxic alternatives The Endangered Species Act Grants the Secretary of the Interior All species listed as “endangered” (ESA) the power to protect endangered and most species listed as 1973 species from “take,” but this “threatened,” or “likely to become approach is rarely used and entirely an endangered species within the contingent upon the regional foreseeable future,” are protected concerns of particular species. from “take” by public or private actors. Additional federal authority to regulate SGD/HVHF may be Federal agency actions are not contained in the ESA. Designed to permitted to “take” or jeopardize protect both endangered and any listed species, not only by threatened species, as well as the autonomous agency actions but habitats on which they depend. also by permitting actions of others The ESA requires the Secretary of —a universal need with respect to the Interior, advised by the Fish and hydraulic fracturing. Wildlife Service and the National Marine Fisheries Service, to give Additionally, the wildlife agencies the “highest priority” to designate “critical habitats” for protecting endangered species. each endangered or threatened species listed in the Federal The Secretary of the Interior has Register,specifying the range of the the authority to list all terrestrial particular species.96 Agencies or and freshwater species as either permitted parties are prohibited “endangered” or “threatened,” and from engaging in, funding, or the Secretary of Commerce has authorizing any action that would equivalent authority for marine life. modify, adversely affect, or destroy

14 Levels of Regulatory Jurisdiction

Federal Law Purpose Limitations a designated habitat.

The Secretary is required to conserve and protect an endangered or threatened species until the species is no longer endangered or threatened Toxic Substances Control Act TSCA grants the EPA authority to Although the EPA claims that the (TSCA) require companies to report new rulemaking will “complement” the health, safety, and exposure current state disclosure information of chemical substances requirements, the interplay and mixtures to the EPA. between the proposed rule and state or other federal regulations is In 2011, the Obama administration yet to be seen. partially granted a petition requesting a rulemaking which Even if fully granted, these would require manufacturers and disclosures do not necessitate any processors to disclose chemical regulation in and of mixtures used during all HVHF themselves. operations and to conduct toxicity testing on named chemicals.

The petition cited numerous federal regulatory “gaps,” or oil and gas exemptions in the SDWA and RCRA, and demanded further federal oversight on disclosure for chemicals used in HVHF operations. Energy Policy Act The Act amended the SDWA’s States were no longer required to 2005 definition of “underground seek permits before engaging in (contains the injection” to exclude “the drilling operations as part of their underground injection of fluids or UIC programs, with the exception of “Halliburton Loophole”) propping agents (other than when diesel fuel was injected. diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.”

15 Levels of Regulatory Jurisdiction

3.3 New York State Authority: OSGML, State Preemption and Municipal Home Rule

New York’s Oil, Gas and Solution Mining Law (OGSML)6, regulates oil and gas operations in the state. It is administered by NYSDEC and contains language that might be interpreted as preempting the constitutional authority of local government to enact land use control over SGD/HVHF activities. Under that authority, localities typically regulate industrial land uses, such as gas drilling operations, by either prohibiting them altogether or assigning them to appropriate areas within their jurisdiction where the intensity of industrial activities does not adversely affect neighboring property values or the quality of life in other parts of the community.7

The OGSML states:

...the provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.

Industry attorneys used this language as the basis for lawsuits against two NY towns, Dryden and Middlefield, that had amended their local zoning laws to prohibit SGD/HVHF. Attorneys for Norse Energy and Cooperstown Holstein Corporation, et al, argued that the OSGML expressly preempts local land use control over the location and local impacts of gas wells.

Article IX, section 3(c) of the New York Constitution, however, provides that “rights, powers, privileges and immunities granted to local governments by this article shall be liberally construed.”8

Both communities won their cases in the lower courts, which found neither express nor implied preemption of local control of SGD/HVHF in the OGSML. On June 30, 2014 the NYS Court of Appeals upheld lower court decisions that previously

6 http://www.dec.ny.gov/lands/2417.html 7 Hydrofracking: State Preemtion, Local Power, and Cooperative Governance, John R. Nolon and Steven Gavin, Case Western Reserve Law Review, Volume 63, Issue 4, 2013 8 Ibid

16 Levels of Regulatory Jurisdiction found that communities have the right to use their local land use authority (Home Rule) to prohibit oil and gas operations in their municipalities9. The court stated:

“We can find no legislative intent, much less a requisite "clear expression," requiring the preemption of local land use regulations.”10

3.3.1 NYSDEC Revised DSGEIS11

In January 2015 the DEC Commissioner, testifying before state lawmakers, said his agency will accept Department of Health Commissioner Howard Zucker's December 17, 2014 recommendation against allowing HVHF , citing concerns about its potential impact on human health and conflicting studies about its safety, when it finalizes its lengthy review of SGD/HVHF, known as the Supplemental Generic Environmental Impact Statement, originally published in 2011.

Speaking to reporters after his testimony Martens reiterated that his agency's report will be finalized "early this year."12 He also said that New York's planned ban on large-scale hydraulic fracturing can be revisited by the state at any point, but likely won't be in the near future.

3.4 Preemption Thwarted in Pennsylvania

From Case Western Reserve Law Review:13

The tension between local and state control of fracking evident in New York is profoundly evident in recent legislative and judicial decisions in Pennsylvania—the state in the heart of the Marcellus

9 https://www.nycourts.gov/ctapps/Decisions/2014/Jun14/130-131opn14-Decision.pdf 10 http://www.cedclaw.org/local-control/town-of-dryden-legal-challenge#sthash.aAIMgUlg.dpuf 11 http://www.dec.ny.gov/energy/75370.html 12 http://www.poughkeepsiejournal.com/story/news/local/new-york/2015/01/28/dec-chief-state-revisit- fracking-ban-soon/22483267/ 13 Hydrofracking: State Preemption, Local Power, and Cooperative Governance, John R. Nolon and Steven Gavin, Case Western Reserve Law Review, Volume 63, Issue 4, 2013

17 Levels of Regulatory Jurisdiction region. Under prior state oil and gas law, the state courts had determined that local governments could regulate but not prevent fracking under local zoning. Following these judicial decisions, the state legislature adopted Act 13, which all but preempted local control. The Act explicitly required local governments to include fracking as a permitted use in all zoning districts. This Act, in turn, was invalidated by Robinson Township v. Commonwealth, which held that it failed to protect neighboring property owners from harm and made irrational land use classifications. The power of municipalities to adopt comprehensive plans and to separate land uses through zoning, and the derivative rights of landowners, in the Robinson court’s view, trumped state oil and gas legislation that, on its face, preempted local regulation.

Following the Robinson decision, and pending the decision of the Pennsylvania Supreme Court on appeal,...fracking regulation in Pennsylvania has reverted to the doctrine established in Huntley and Range Resources. The courts in Pennsylvania, working with different but seemingly preemptive state oil and gas statutes, came to roughly the same result as the courts in New York. In both states, the judges have found ways to harmonize the power of local governments to adopt local land use restrictions on fracking to promote local interests with the power of the state to standardize the regulation of the gas drilling industry.14

3.5 Local Authority: Municipal Home Rule Law

The NYS Constitution Municipal Home Rule Law provides local governments with significant land use authority and through that authority the ability to control many of the processes in their community, including the ability to enact local laws for "protection and enhancement of its physical and visual environment." (See discussion starting page 26 )

14 Hydrofracking: State Preemption, Local Power, and Cooperative Governance, John R. Nolon and Steven Gavin, Case Western Reserve Law Review, Volume 63, Issue 4, 2013

18 History of Regulatory Compliance

4. History of Regulatory Compliance

Regulatory compliance is essential for “best practices” in and industry. SGD/HVHF is exempt from many regulations that apply to other industries. Here are some examples of violations of regulations that do apply:

Two recent reports describe private water well contamination and violations of SGD/HVHF regulations in Pennsylvania:

• PA Department of Environmental Protection Report: 283 private water wells contaminated, August 201415

• “Fracking Failures”16 Winter 2015

The compliance issues documented in these reports have also been documented in SGD/HVHF operations in other states.

4.1 Private Drinking Water Well Contamination in PA

In August 2014 Pennsylvania Department of Environmental Protection(PADEP) released details of 283 cases (see Page 182 for copy of report) in which state regulators found that SGD/HVHF companies contaminated private drinking water wells. The PA DEP posted online links to the documents after the agency conducted a “thorough review” of paper files stored among its regional offices. Pennsylvania’s auditor general said in a [July 2014] report that PADEP’s system for handling complaints “was woefully inadequate” and that investigators could not even determine whether all complaints were actually entered into a

15 Kevin Begos, Michael Rubinkam, Fracking contaminated drinking water wells in PA, AP, August 28, 2014 http://wivb.com/2014/08/28/243-cases-in-pa-where-fracking-contaminated-... 16 Fracking Failures in PA Report.pdf

19 History of Regulatory Compliance reporting system.17 The problems listed in the documents include methane gas contamination, spills of wastewater and other pollutants, and wells that went dry or were otherwise undrinkable. Some of the problems were temporary, but the names of landowners were redacted, so it wasn’t clear if the problems were resolved to their satisfaction. Other complaints are still being investigated.18

An example of a redacted PA DEP complaint response letter:

17 Kevin Begos, Michael Rubinkam, Fracking contaminated drinking water wells in PA, AP, August 28, 2014 http://wivb.com/2014/08/28/243-cases-in-pa-where-fracking-contaminated-... 18 Ibid

20 History of Regulatory Compliance

21 History of Regulatory Compliance

4.2 SGD Industry Violations in PA

A Winter 2015 report “Fracking Failures”19 about SGD industry violations in Pennsylvania that pose serious risks to workers, the environment and public health.

The following is excerpted from the report's Executive Summary:

Oil and gas industry spokespeople routinely maintain that the risks of fracking can be minimized by best practices and appropriate state regulation. Not only is this false – fracking is harmful even when drillers follow all the rules – but drillers also regularly violate essential environmental and public health protections, undermining their own claims. A look at recent data from Pennsylvania, where key industry players pledged to clean up their acts, illustrates the frequency with which companies still break the rules. In Pennsylvania, fracking companies violate rules and regulations meant to protect the environment and human health on virtually a daily basis. Between January 1, 2011, and August 31, 2014, the top 20 offending fracking companies committed an average of 1.5 violations per day. Fracking operators in Pennsylvania have committed thousands of violations of oil and gas regulations since 2011. These violations are not “paperwork” violations, but lapses that pose serious risks to workers, the environment and public health, including:

• Allowing toxic chemicals to flow from drilling sites and into local soil and water

In July 2012, for example, Chief Oil & Gas was cited by the Pennsylvania Department of Environmental Protection (DEP) when the company allowed 4,700 gallons of hydrochloric acid to flow out of its drilling site in Leroy Township, Bradford County, and into nearby Towanda Creek, causing a fish kill.

• Endangering drinking water through improper well construction

Well problems, including leaks, contaminated drinking water supplies in as many as 243 cases across Pennsylvania between December 2007 and August 2014 – 81 of them between 2011 and 2014. In one such case Carrizo (Marcellus) LLC was cited for failing to properly restore a water supply its fracking activities had contaminated.

19 Fracking Failures in PA Report.pdf

22 History of Regulatory Compliance

• Dumping industrial waste into local waterways

One operator, EQT Production, was cited twice in 2012 by the Pennsylvania Department of Environmental Protection (DEP) for violations at a well in Duncan Township, Tioga County, that polluted a local stream.

• Otherwise disposing of waste improperly

In one 2012 incident at an Exco Resources well in Bell Township, Clearfield County, the company was cited for contaminating underground drinking water supplies as a result of leaks from a well drilled for the specific purpose of injecting toxic waste underground.

The list of top violators in Pennsylvania includes large multi-national industry operators and smaller locally owned firms and companies that promised to exceed state safety standards.

The companies with the highest number of violations are listed in this table from the report:

23 History of Regulatory Compliance

4.2.1 Infrastructure Violations: Iroquois Gas Pipeline

The Iroquois gas pipeline was put into service in 1992. On May 23, 1996 the New York Times reported 20 that they were fined $22 million dollars:

After years of saying the natural gas pipeline it built from the Canadian border to Long Island was safe and environmentally sound, the company that operates the Iroquois Pipeline pleaded guilty today to four felonies for violating Federal environmental laws.

The company agreed to pay $22 million in fines, making the case the biggest criminal environmental prosecution since Exxon Corporation agreed to pay $125 million for the Exxon Valdez oil spill in Prince William Sound in Alaska.

In addition, four of the Iroquois Pipeline Operating Company's former executives, including its former president, Robert J. Reid, pleaded guilty to misdemeanors and agreed to help prosecutors in other cases.”

...Mr. Reid acknowledged ... that Federal permits required numerous so-called trench breakers that stop soil erosion around the pipe.

"Those precise requirements were not met," he said.

Prosecutors had said many of the required trench breakers were omitted as part of a widespread effort to cut corners that compromised the environment and risked a potentially explosive break in the pipe.

...Craig A. Benedict, the assistant United States Attorney in charge of the case, said that Iroquois had agreed to an unusual program of safety monitoring. The program will include frequent inspections of the pipe with an electronic robot that detects flaws.

But after years of assertions by critics that Iroquois had rushed in construction, leaving the pipe as a time bomb underground, the safety questions were not resolved by the court action today. Critics and contractors have said Iroquois dumped large boulders that could damage the pipe into its 375-mile long trench.”

Iroquois Gas Transmission Company is party to the application for the proposed Constitution Pipeline Project/Wright Interconnect Projects. In the Federal Energy Regulatory Commission's (FERC) Draft Environmental Impact Statement (DEIS) Section on Reliability And Safety, the

20 NYT, May 24, 1996,” Pipeline Concern Draws $22 Million Fine” By William Glaberson

24 History of Regulatory Compliance

Pipeline Accident Data says: The dominant incident cause is corrosion and pipeline material, weld or equipment failure constituting 48.5 percent of all significant incidents.21

In May 2013 Iroquois Gas Pipeline was fined $8700 for another violation:

“On May 28, 2013 the US Department of Transportation (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) fined Iroquois Pipeline Operating Company $8700 for violations related to failure to maintain corrosion control records and failure to install and maintain transmission markers.22”

Iroquois' failure to maintain these corrosion control records suggests a lack of commitment to comply with safety regulations and undermines confidence in its existing and future facilities.

21 FERC FEIS: Constitution Pipeline and Wright Interconnect Projects, Docket Nos. CP13-499 and CP13- 502; NAN-2012-00449-UBR, 2014 22 May 28, 2013 Letter from US DOT PHMSA to Jeffrey Bruner, President, Iroquois Pipeline Operating Company, re CPF No. 1-2012-1026

25 Local Government Options in NY

5. Local Government Options in NY

5.1 Municipal Home Rule Law

The goal of municipal home rule is to facilitate local control and minimize state intervention into municipal affairs.23

Home Rule is a provision of the New York State Constitution24:

“Section 10 of the Municipal Home Rule Law contains the constitutional grants of power to local governments and adds thereto the powers to collect local taxes authorized by the Legislature, to provide for the protection and enhancement of the physical and visual environment, the apportionment of local legislative bodies, and assessments for local improvements, as well as the powers granted to local governments in the Statute of Local Governments” Constitutional home rule power is now granted to all counties outside New York City, and all cities, towns and villages (Section 3(d)(1)). Prior to 1963 no towns and only some villages had constitutional home rule power.25”

The Home Rule process: ...can serve as an important vehicle for communities that are seeking to challenge the fundamental structure of law which puts the rights of corporations over those of communities; prevents communities from saying “no” to projects that are harmful for workers, the local economy, livability, property values, or the environment; and ultimately prevents municipalities from creating the economically and environmentally sustainable communities they seek.26

5.2 Land Use Planning and Zoning Law

The Pace Law School “Beginners Guide to Land Use Law”27 describes how zoning law is related to land use planning:

23 http://www.ask.com/wiki/Municipal_home_rule?o=2801&qsrc=999&ad=doubleDown&an=apn&ap=ask.com 24 http://celdf.org/downloads/NY%20State%20Home%20Rule%20CHAPTER%20843.pdf 25 http://www.dos.ny.gov/lg/publications/Adopting_Local_Laws_in_New_York_State.pdf 26 http://www.celdf.org/section.php?id=40 (Community Environmental Legal Defense Fund) 27 http://www.law.pace.edu/sites/default/files/LULC/LandUsePrimer.pdf

26 Local Government Options in NY

The enabling statutes require land use regulations to be "in accordance with a comprehensive plan" or "in accordance with a well considered plan." Planning "is the essence of zoning" says the judiciary in New York State. Comprehensive planning is society's insurance that the public welfare is served by land use regulation.

The Guide asks the question:

What gives your town or village the authority to regulate what is done with privately-owned land?

Then explains:

Under the New York Constitution, the state legislature is authorized to adopt laws to protect the public health, safety, ... and general welfare of the people. The legislature has, in turn, delegated significant authority to regulate land use to the local level: the over 1,600 villages, towns, and cities in the state. These acts of delegation are both specific and general. Specific authority has been delegated to municipalities to adopt comprehensive plans and zoning laws and to adopt subdivision and site plan regulations under the Village, Town, and General City Law. General authority to legislate with regard to the public health, safety and welfare and the physical environment is delegated under the Municipal Home Rule Law, which is the source of authority often relied on to adopt natural resource protection regulations. The General Municipal Law provides specific authority to local governments to adopt laws relating to the protection of trees, the preservation of historic districts and landmarks, and the creation of conservation advisory boards, among other matters. The state has retained authority to regulate certain aspects of land use,delegated some authority to county or regional agencies, and in certain instances has shared land use authority with local governments. Occasionally, the legislature withdraws this delegated authority by enacting legislation which preempts the local role.

Given the complexity, comprehensiveness, and utility of these linked powers and duties, the judiciary is rightfully cautious about implying that state regulatory enactments, such as those regulating fracking, were intended by the legislature to inhibit local prerogatives. The importance of local land use regulation leads to a presumption against preemption that must be overcome to convince most state judges that, in adopting oil and gas laws, state legislatures intended to preempt local zoning.28

28 Hydrofracking: State Preemtion, Local Power, and Cooperative Governance, John R. Nolon and Steven GaviWestern Reserve Law Review, Volume 63, Issue 4, 2013n, Case

27 Local Government Options in NY

5.3 Land Use Regulations and The Comprehensive Plan

In 1989 Westerlo adopted its zoning law29 . The law is consistent with authority described in Municipal Home Rule Law. Article 3, “Purposes of the Local Law”, opens with the statement:

“The general and overall intent of this Local Law is to promote the health, safety and welfare of the community.”

A Comprehensive Plan (CP) is the single most important statement of a community's identity and values. It provides guidance for constructing and amending local land use regulations. Zoning amendments must comply with the Town's CP. The Westerlo Planning Board completed a CP30 in May 2014 and it was adopted by the Town Board in January 2015. Its Key Objectives are stated as: “...to ensure that zoning in the Town of Westerlo: 1. Promotes the health, safety and welfare of the community 2. Maintains and enhances the rural character of the town 3. Protects and promotes agricultural operations and farmlands within the Town of Westerlo, pursuant to Albany County ‘ Right to Farm law’ 4. Protects and preserves existing open space and forested lands 5. Provides for orderly and sustainable growth on a suitable scale conducive to local road, utilities, waste and water systems, and infrastructure conditions 6. Adequately and sufficiently protects neighboring land uses from potentially objectionable aspects of new development through the use of Site Plan Review and Special Use Permitting processes 7. Promotes continued recreational opportunities 8. Protects and preserves existing water resources 9. Controls the location, size and scope of new development through the use of zoning tools such as incentive zoning, floating zones, and conservation easements 10. Improve and expand municipal infrastructure to support new development and encourage state of the art telecommunications infrastructure to spark business development and technology growth. (Note: Article 17 Section of the Local Law #1 of 1989- Wireless Communications Facilities) 11. Promote commercial expansion, niche retail and specialty farming, along with small technology companies, which will flourish with enhanced telecommunications infrastructure 12. Preserve and maintain the character and beauty of the rural landscape of Westerlo”

29 http://www.townofwesterlony.com/media/LAW1-89-REV.pdf 30 Town of Westerlo, Albany County, New York, Comprehensive Plan, May 2014

28 Local Government Options in NY

The ZRC considered these key objectives, along with the Town Board's three-point charge, while evaluating how Shale Gas Development (SGD) and high volume hydraulic fracturing (HVHF) could affect Westerlo.

5.4 Bonding

Bonding and liability insurance are significant issues in SGD/HVHF: well casing failures, spills and toxic discharges, road damage, final capping and reclamation, all need consideration by both municipalities and landowners. Many SGD companies subcontract operations to Limited Liability Corporations (LLCs ) that come and go and sell their holdings without municipal or landowner notice or control. Liability for damages can accrue to landowners, or to the Town, when these LLCs are no longer in business, both in the short and long terms. Final HVHF well capping is an ongoing issue across the US. The costs to cap a well can be in the hundreds of thousands of dollars. In PA recently, gas wells were capped for a total of $730,000 per well. 31 The experience of previous resource extraction booms and busts suggests that the full cost to municipalities and landowners may not be known or come due for decades. Cleanup up and capping of orphaned wells, and land reclamation, come at the end of the SGD/HVHF life cycle.

5.4.1 Exposure Checklist

According to Munich Reinsurance, towns need to consider the following Exposure Checklist32 . Management of the issues raised here can affect the number of town personnel needed for code enforcement, committees for oversight, hiring of legal specialists in oil and gas contracts, and so on, as well as the overall financial impact to the town.

31 The Costs of Fracking:The Price Tag of Dirty Drilling’s Environmental Damage Environment North Carolina Research & Policy Center. Tony Dutzik and Elizabeth Ridlington, Frontier Group John Rumpler, Fall 2012 32 Munich ReInsurance May 2012, Focus On: Hydrofracking,, www.munichre.com/site/mram/get/documents_E- 2044155288/mram/assetpool.mr_america/PDFs/3_Publications/Research20Spotlight/focuson_hydrofracking. pdf

29 Local Government Options in NY

Exposure Checklist

Operations • Is the drilling company in compliance with all federal and state regulatory measures? • What experience does the drilling company have in high pressure, high volume drilling? • Will the drilling operation be conducted near populated areas? • Is the drilling site fenced-in to reduce “attractive nuisance” and keep others from trespassing? • If the drilling operator must cross third-party land to get to drilling sites, have they obtained legal permission to do so? • Are abandoned production or exploration wells plugged? • What is the number, age, type and condition of the drilling equipment? • Does all machinery and equipment contain the proper machine guards? • How often is maintenance performed on equipment? How often is equipment inspected and tested to assure proper operating integrity and reliability? • Are safety procedures in place to prevent leaks and spills during the fracturing operation? • How often is soil and water tested for contamination? • Is the driller hauling wastewater to treatment plants? • Are all fracture fluids managed properly on site before, during and after the fracturing process? • Are contractors and other responsible parties involved in the transportation and handling of fluids, chemicals and other material associated with the process properly trained? • Are sewage/water treatment plants accepting fracking brine? If so, are appropriate safety measures taken into consideration?

Coverage • Are the risks properly classified? • Is there a “mutual hold harmless” agreement in place where each party agrees to assume responsibility for its own personnel and properties? • Should there be an exclusion for pollution or contamination of groundwater or water aquifer? Is environmental liability subject to a sublimit under the policy? • Are terms provided on an “occurrence basis” or “claims-made basis”? • Are fines, penalties and punitive damages covered (where insurable by law)? • Are emergency-response costs included? If so, are they sublimited? • Is coverage for natural-resource damage included? • Is coverage provided for non-owned disposal sites? • Are defense costs inside or outside the limits of liability? D • Does the drilling company have a driller blow-out policy or well blow-out coverage?

NYS currently has minimal bonding and insurance requirements for SGD/HVHF operations. If NYS if drilling companies go bankrupt or out of business, the cost of the remaining toxic cleanup funneled to individuals33

33 From statement by Riverkeeper’s Attorney Dulong and http://democrarywise.syr.edu/?p=7024

30 Local Government Options in NY

5.5 Municipal Tools and Actions

The following table is adapted from the Tompkins County Council of Governments Municipal Tools for addressing Potential Gas Drilling Impacts34 (Source text not italicized,)

Municipal Discussion Further Resources Actions Comprehensive ‣ Review the plan, if there is a written one, to Albany County Planning Tools Plans identify whether industrial activities were contemplated; prepare a comprehensive plan if NY Department of State Local there is not an adopted one Government Services ‣ Involve the public in plan preparation or amendment American Planning Association ‣ Ensure the plan reflects residents’ vision for the future Groundwater Resource Mapping ‣ Conduct natural and cultural resource mapping so that important community features are Environmental Resource Mapper identified for protection and enhancement ‣ Incorporate County Comprehensive Plan principles into municipal plans Zoning ‣ Review zoning districts and uses to determine Center for Rural Massachusetts Regulations ultimate build-out of the community if there are Manual of Build-Out Analysis zoning regulations ‣ Engage the County Planning Department to NY Department of State Zoning determine if zoning is warranted and to get Publications help ‣ Consider using the services of a professional NY Planning Federation Model planner to draft zoning Ordinances ‣ Review the regulations for issues such as access, signage, landscaping, noise, lighting, Tompkins County Vital building placement, natural and cultural Communities Toolbox resource protection (see Site Plan Regulations below) ‣ Require site plan review for driveway permits to gas pad areas to minimize impacts to neighbors ‣ Review special use permit requirements and establish standards for individual uses ‣ Review the zoning and subdivision regulations to determine if design standards or guidelines have been developed to illustrate the types of

34 Adapted from Tompkins County Council of Governments website, http://tompkinscountyny.gov

31 Local Government Options in NY

Municipal Discussion Further Resources Actions development and neighborhoods that are desired Site Plan ‣ Site plan regulations address development NY Department of State Site Regulations issues such as compatibility with surroundings, Development Review pedestrian and vehicle access, economic impacts, site density, plans and elevations of structures, signs, landscaping, fencing, buffers, and utilities ‣ Such regulations can also address impacts on air, water, and noise, visual compatibility, geology, topography, soil characteristics, vegetation, wildlife,drainage, erosion, wetlands, flood hazards, among other reasonable site issues Local Laws New York State Municipal Home Rule Law New York Rural Water Association (MHRL) allows a community to enact local laws for "protection and enhancement of its physical Town of Colonie Watercourse and visual environment." Protection Law ‣ Communities have used this State law to enact wetlands regulations, watercourse and water Pace University School of Law body protection regulations, hillsides and steep slopes protection regulations, protection of Environmental Law Reporter wildlife habitat, groundwater, game and game Open Space Protection birds, scenic areas, fish, flood control, soil Techniques conservation, reforestation, timber harvesting and tree preservation, and stormwater regulations. ‣ Local laws have also been used to establish critical environmental areas as overlay districts as well as natural resource and open space protection districts (just like residential or commercial districts) under zoning. Historic ‣ New York State General Municipal Law allows NY State Department of State Resources a community to enact a landmark preservation law under section 96-a of Article 5-K. ‣ Zoning and Site Plan regulations can also address issues of aesthetics and cultural resources generally. Other Local ‣ Consider adopting local light, noise and air Noise Pollution Clearinghouse Controls quality regulations ‣ Require that landmen (representatives of drilling NY Planning Federation Diesel companies) register before operating in a Idling Guide community so that residents can identify individuals who are soliciting the use of land.

32 Local Government Options in NY

Municipal Discussion Further Resources Actions Critical ‣ Designate natural and cultural resources as DEC’s SEQR Handbook Environmental Critical Environmental Areas (CEA) under the Areas New York State Environmental Quality Review Act (SEQR). ‣ Legislative boards, planning boards and zoning boards can all designate CEA’s, which then require an additional level of environmental assessment in accordance with SEQR. Inform DEC of all locally designated CEA’s. Emergency Ensure that local emergency responders are Responders informed of the exact contents of fracking fluids at well sites and transport routes so that proper treatment can be provided in the event of spills or contamination incidents. Mobile Homes Zoning is the most common method of regulating NY State Department of State mobile homes. For communities that lack zoning, a free-standing regulation or local law can be enacted. Stormwater The State DEC encourages municipalities to NY State Department of Management enact local regulations for management of Environmental stormwater. The State of New York recommends Conservation that every community, whether or not it is regulated under the state/federal stormwater program, to adopt a Stormwater Management Local Law. Roads ‣ Plan, post, and enforce truck routes that Cornell Local Roads Program minimize high-volume truck traffic ‣ Devise Road Use Agreements (RUAs) or state level Yates County Roads Preservation fees that support road maintenance while and Use Program drilling or production activity is underway ‣ Anticipate “haul routes” to and from drilling sites based leased parcel and permit location information, and infrastructure ‣ Undertake a comprehensive traffic impact study and document baseline roads by video/ photographs of pre-development road conditions ‣ Estimate road damage costs using AASHTO standards for equivalent single axle loads (ESALs) ‣ Consider adopting restrictions on hours of operation on local roads for heavy industrial uses

33 Local Government Options in NY

Municipal Discussion Further Resources Actions ‣ Establish inter‐municipal agreements to ensure consistent policies for mitigating heavy industry operations on roadways connecting neighboring municipalities ‣ Require pre‐use roads assessments performed by a licensed Civil Engineer, paid for by any company expecting to heavily use local roads and infrastructure ‣ Then enact a road use law, where haulers (all heavy trucks) exceeding a certain weight are required to pay for a permit for their activities ‣ Establish “financial undertaking agreements” (i.e., cash bond, escrow, or letter of credit) sufficient to cover the real cost of damages to local roads including infrastructure (e.g., drainage, culverts, bridges) Pipelines ‣ Require permits and inspections by the Field Safety Guide highway superintendent for road openings for pipelines to ensure alternative arrangements for the period during which the road is closed, alternative traffic circulation or by-pass routes, the listing of responsible parties for the road closing and restoration, and specifying the quality of the replacement roadway to be provided upon completion of construction ‣ Co-locate pipelines in road rights-of-way to minimize impacts of additional land disturbances ‣ Encourage companies to share pipelines to avoid duplication and decrease impacts while offering economies of scale Community ‣ Create a community “task force” to act as a DEC Oil and Gas Database Services clearinghouse of information on HVHF ‣ Identify “what is normal” for local communities, Cornell Natural Gas Resource so that increases in demand for local Center government services can be noticed quickly ‣ Identify capacities and “problem thresholds” for Mineral Resources Environmental local government services and for private Notice Bulletin services like EMT’s ‣ Identify jurisdiction and authority over issues of Catskill Citizens for Safe Energy concern ‣ Create a list of telephone numbers and email addresses for management and emergency

34 Local Government Options in NY

Municipal Discussion Further Resources Actions contacts in the event of an incident at or near a drill site or established gas well ‣ Connect with gas companies to identify ways to mitigate problems ‣ Monitor gas well development (i.e. drill rig numbers and locations, well locations, permit trends, and production trends) using GIS mapping ‣ Identify likely growth scenarios and monitor commercial, industrial, and residential development trends ‣ Plan for the new growth and how it will be paid for (new fees and bond resolutions) ‣ Continue to plan for projects, facilities, and services that will remain after gas-related growth has subsided or reversed ‣ Plan and implement central water and wastewater systems in existing centers and priority growth areas and balance such development opportunities with open space, farmland and forestry protection strategies in rural areas Training ‣ Train emergency management responders on NY Alert blow‐out prevention, gas flaring procedures and layout of flow lines NY State Office of Real Property ‣ Encourage residents to sign up for NY Alert Tax Services notifications of chemical spills or gas fires ‣ Encourage a Community College to establish training curricula for long term gas production and monitoring jobs so these permanent jobs go to local residents rather than “out-of-towners” ‣ Ensure local assessors are properly trained on the valuation and assessment of gas producing property Intermunicipal ‣ Consult with the County’s Soil and Water Albany County SWCD Conservation District and existing water users to determine best locations for water NY State Department of State withdrawals ‣ Explore options for sharing services, protecting Pace University Land Use Law resources on a regional basis, and treating Center significant land use issues similarly regardless of location ‣ Make connections to neighbors and to tap into a

35 Local Government Options in NY

Municipal Discussion Further Resources Actions regional forum for addressing intermunicipal issues ‣ Resolve jurisdictional disputes and help coordinate permitting processes through joint meetings with local, county, state and federal representatives Energy Use ‣ Reduce energy consumption through American Planning Association comprehensive planning and community design that incorporates strategies for both Rocky Mountain Institute mobile and non-mobile energy efficiency ‣ Adopt smart growth development strategies Smart Growth America ‣ Streamline community alternative energy use such as wind and solar systems Environmental Protection Agency ‣ Encourage programs aimed at reducing individual energy consumption US Green Building Council ‣ Ensure that local land-use standards proactively encourage the installation of Cornell Green Choices renewable energy technologies

36 Regional Trends

6. Regional Trends

6.1 New York State Actions

6.1.1 2014 Department of Health Report & Ban Recommendation

On December 17, 2014 New York State Health Commissioner Howard Zucker and Department of Environmental Conservation Commissioner Joe Martens jointly announced their recommendation that NYS ban High Volume Hydraulic Fracturing for Shale Gas Development. Their recommendation was based on a 184 page public health review report35 whose major findings are:

Summarized below are some of the environmental impacts and health outcomes potentially associated with HVHF activities:

• Air impacts that could affect respiratory health due to increased levels of particulate matter, diesel exhaust, or volatile organic chemicals. • Climate change impacts due to methane and other volatile organic chemical releases to the atmosphere. • Drinking water impacts from underground migration of methane and/or fracking chemicals associated with faulty well construction. • Surface spills potentially resulting in soil and water contamination. • Surface-water contamination resulting from inadequate wastewater treatment. • Earthquakes induced during fracturing. • Community impacts associated with boom-town economic effects such as increased vehicle traffic, road damage, noise, odor complaints, increased demand for housing and medical care, and stress.

Additionally, an evaluation of the studies reveals critical information gaps. These need to be filled to more fully understand the connections between risk factors, such as air and water pollution, and public health outcomes among populations living in proximity to HVHF shale gas operations (Penning, 2014; Shonkoff, 2014; Werner, 2015).”

35 NYS DOH Report – A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development, December 2014

37 Regional Trends

6.1.2 NYS Supreme Court upholds Towns of Dryden & Middlefield Zoning Amendments36

On June 30, 2014 the NYS Court of Appeals upheld the lower court decisions that previously found that communities have the right to use their local land use authority (Home Rule) to prohibit oil and gas operations in their municipalities.

The court stated:

“We can find no legislative intent, much less a requisite "clear expression," requiring the preemption of local land use regulations.”37

6.1.3 Health Care Professionals call for 3-5 year ban38

39 On May 29, 2014 250 doctors, health professionals and researchers sent a letter asking Governor. Andrew Cuomo to impose a three- to five-year ban on fracking in the state to allow more time for scientific studies on what signatories described as the emerging health risks of fracking.

6.2 Albany County Actions

6.2.1 Local Law C of 201340: Prohibiting HVHF brine on Albany County roadways and in waste water treatment plants in Albany County

In August 2013 Albany County lawmakers voted overwhelmingly (30 to 7) to ban gas-drilling

36 https://www.nycourts.gov/ctapps/Decisions/2014/Jun14/130-131opn14-Decision.pdf 37 http://www.cedclaw.org/local-control/town-of-dryden-legal-challenge#sthash.aAIMgUlg.dpuf 38 Health groups urge 3-5 gas frack ban by Cuomo, Health professionals sign letter urging Cuomo to block drilling in the state, By Brian Nearing, May 29, 2014 http://www.timesunion.com/local/article/Health-groups-urge-3-5-gas-frack-ban -by-Cuomo-5515089.php 39 Medical-Experts-to-Governor-Cuomo-May-29Final.pdf ( http://bit.ly/1kO3jFu ) 40 http://access.albanycounty.com/legislature/resolutions/2013/20130812/13-LL_C.pdf

38 Regional Trends waste, specifically the chemical cocktail produced by hydrofracking, from county water treatment plants and from use on its roads.

The measure targets drilling's highly salty and often radioactive liquid byproduct, said Guilderland Democrat Bryan Clenahan, the ban's chief sponsor. Gas companies have marketed the liquid as a tool to keep roads from icing over in the winter.41

The Legislative Findings section of Local Law C of 2013 reads as follows:

The Legislature finds and determines that hydraulic fracturing is a highly controversial form of mining which uses pressurized fluid to break rock formations and release natural gas that is then collected and the fluids used in hydraulic fracturing produce a liquid waste product with high levels of salinity, commonly known in the industry as fracking brine.

The Legislature further finds and determines that some businesses that perform hydraulic fracturing would like to dispose of such brine by providing it to local governments as a road de-icing agent for use in wintry weather conditions and the ingredients in fracking brine are different from the rock salt commonly applied to roadways by municipalities prior to and during a winter storm.

The Legislature further finds and determines that fracking brine contains toxic substances and many of the chemicals found in fracking brine have been linked to health problems associated with the respiratory system and other organs and when applied to roadways, fracking brine has the potential to pollute surface and groundwater.

The Legislature further finds and determines that the chemicals found in fracking brine cannot be filtered by waste water treatment facilities and that the introduction of brine into such facilities poses a health risk to County residents.

The Legislature further finds and determines that it is in the best interests of the residents of Albany County to protect the health and safety of Albany County residents and local drinking water by prohibiting the use of hydraulic fracturing brine on Albany County roadways and properties and prohibiting the introduction of brine into waste water treatment plants in Albany County.

6.2.2 Local Law D of 201442: Prohibiting the disposal of SGD/HVHF brine and waste in Albany County Solid Waste Management Facilities

In September 2014 the Albany County Legislature held a public hearing on Local Law D of 2014 in relation to the disposal of waste associated with natural gas exploration and extraction 41 http://www.timesunion.com/local/article/County-bans-drilling-waste-472... (August 12, 2013) 42 http://access.albanycounty.com/legislature/resolutions/2014/20140609/2014-LL_D.pdf

39 Regional Trends activities in solid waste management facilities.

The Legislative Findings section of Local Law D of 2014 reads as follows:

The Legislature finds and determines that hydraulic fracturing is a highly controversial form of mining which uses pressurized fluid to break rock formations and release natural gas that is then collected and the fluids used in hydraulic fracturing produce a liquid waste product with high levels of salinity, commonly known as fracking brine; and

The Legislature further finds and determines that fracking brine contains toxic substances and many of the chemicals found in fracking brine have been linked to severe health problems associated with the respiratory system and other organs; and

The Legislature further finds and determines that the introduction of fracking brine into solid waste management facilities poses a serious health risk to County residents; and

The Legislature further finds and determines that it is in the best interests of the residents of Albany County to protect the health and safety of Albany County residents by prohibiting the introduction of fracking waste and brine into solid waste management facilities in Albany County.

6.3 Neighboring Hilltown Actions

6.3.1 Town of Berne Berne has had a HVHF moratorium in effect since February 2012, and is currently considering its local options.

6.3.2 Town of Knox No information

6.3.3 Town of Rensselaerville Rensselaerville has a HVHF moratorium in effect. The Town has drafted revised zoning that, among other things, addresses SGD/HVHF impacts. Those amendments will go through the process of public hearing(s) and determination by the town board as to whether to adopt them into town law.

40 Regional Trends

6.4 Other Regional Actions

6.4.1 Town of Guilderland

Section 280-22 of Town of Guilderland Zoning Code43 describes their Industrial District. Item (E) of that section enumerates uses “expressly prohibited” in the Industrial District or “any other district”. These prohibited uses include activities associated with SGD/HVHF, i.e:

#5: Hydraulic Fracturing or Hydro-fracking. #7: Manufacturing, Heavy. #8: Oil or Gas Drilling or Exploration. #9: Petroleum refining. #11: Storage or disposal of industrial hazardous wastes as listed under Title 9 of Article 27 of the NYS Environmental Conservation Law #13: Any use which in the opinion of the Zoning Board or Planning Board, is or is likely to be noxious or offensive due to the emission of odor, smoke, toxic or noisome fumes, radiation, gas, noise, vibration or excessive light, or any combination thereof, or is likely to be harmful or injurious to public health, safety or the general welfare.

6.4.2 Delaware County Board of Supervisors Actions

• Resolution Opposing fast-tracking of Constitution Pipeline

▪ On March 4, 2015, the Delaware County Board of Supervisors called for a full NYSDEC review of the Constitution Pipeline project before issuing permits to allow it to cross the county.

“At a board meeting last week, supervisors adopted a resolution, stating that the 30- inch natural gas pipeline, which will cross the towns of Davenport, Franklin, Harpersfield, Masonville and Sidney, "is moving forward with what appears as lax oversight with regard to municipal, natural resources and landowner protections than most other projects."

43 http://www.townofguilderland.org/Pages/GuilderlandNY_ZBA/Final%20Code.pdf

41 Regional Trends

As examples, the resolution notes that landowners have been served with notices of eminent domain proceedings before environmental permits have been issued; stream crossings lack the design standards necessary to withstand large storms and; there are no engineering designs for individual crossings of streams and wetlands.

The resolution calls for the same oversight required of "any local project."44

6.4.3 Schoharie County Board of Supervisors Actions

• Resolution Opposing Any Additional Pipelines

◦ On September 19, 2014, the Schoharie County Board of Supervisors passed a resolution opposing any additional pipelines through the county. The resolution represents another impediment to the already troubled Constitution Pipeline and the more recently proposed Kinder-Morgan/Tennessee Pipeline and underscores the high level of opposition in Schoharie County to both projects.45

• Resolution Opposing Use of Eminent Domain

◦ On February 20, 2015 the Schoharie County Board of Supervisor passed a resolution opposing the use of eminent domain by Pipeline Companies. 46

44 http://www.waltonreporter.com/Articles-News-c-2015-03-03-117086.113117-Supervisors-Call-for-Full-DEC- Review-of-Constitution-Pipeline.html 45 The Center for Sustainable Rural Communities, Richmondville, NY 46 ibid

42 Major Findings – Local Impacts

7. Major Findings – Local Impacts

7.1 Community Character – Westerlo's Rural/Agricultural Identity

From the Westerlo Comprehensive Plan Mission Statement: “The general sentiment of Planning Board members and participating members of the public throughout the Comprehensive Plan process, is that people generally like the Town of Westerlo, as it currently exists, and a Comprehensive Plan should ensure that aspects of the present Town be preserved and protected.

As part of this process, the Planning Board repeatedly conducted an inquiry to determine what particular aspects of the present Town people find attractive and worthy of protection in the Comprehensive Plan.

The single most consistently identified aspect of the Town, deemed highly valuable and worthy of immediate and continued protection, is those lands currently suitable for rural/agricultural use.

The crucial importance of active rural/agricultural lands was defined in a number of ways. These included the aesthetic value of the farm operations themselves as well as the views and vistas. Also, the fact that active farm operations provide the Town with a signature distinctive characteristic as a rural/agricultural community and provide a direct connection to the, predominate, aspect of the history and culture of Westerlo. The economic benefit from active rural/agricultural operations was also identified and is wholly supported through the RIGHT TO FARM ACT.”

From the Westerlo Comprehensive Plan Key Objectives: “...to ensure that zoning in the Town of Westerlo:

• Maintains and enhances the rural character of the town • Protects and promotes agricultural operations and farmlands within the Town of Westerlo, pursuant to Albany County ‘ Right to Farm law’ • Protects and preserves existing open space and forested lands • Provides for orderly and sustainable growth on a suitable scale conducive to local road, utilities, waste and water systems, and infrastructure conditions • Preserve and maintain the character and beauty of the rural landscape of Westerlo

43 Major Findings – Local Impacts

Although 1% of the population as 3361 individuals (at the 2010 census) and 11% of the land mass of the County of Albany, Westerlo has significance for the following:

Westerlo remains bucolic in agricultural pasturelands, historic in miles of colonial stonewalls and 1800’s barns and farmhouses, and scenic in fields, meadows and forested hillsides and in magnificent views of the north face of the Catskill Mountains. The town is rich in wetlands. Streams and natural springs flow towards major waterways: on the north to the Switzkill Creek and on toward the Mohawk River, on the west to the Catskill Creek on toward to the Hudson River and to the east to the reservoirs of neighboring urban centers and cities. Rare plants such as the endangered Monkeyflower and the Scarlet Lobelia inhabit our stream side environments. The uncommon and medicinally valuable ginseng grows in our woodlands and we are home to animals and birds ranging from deer, bobcat, black bear, porcupine, herons, bald eagles, wild turkeys and woodcocks, great horned owls, nesting songbirds, coyote, fisher and the occasional moose. There have also been reports of mountain lion in the town. Westerlo is home to the 420 acre registered National Natural Landmark, the Nature Conservancy’s Bear Swamp.47 Westerlo contributes substantially to both the Alcove Reservoir and Basic Creek Reservoirs. The Alcove Reservoir supplies the City of Albany with most of its drinking water. In 2011 Albany's water was selected as one of the five best tasting City waters in America. Gerry Jennings, the mayor at the time, said “This is a tremendous honor for the City of Albany,” Mayor Gerald D. Jennings said after receiving the news. “Albany loves its drinking water and we are enormously proud that the rest of America understands what a national treasure we have right here in our own City.”48

Westerlo has meaning and value for residents as well as for the entire region.

47 Wikipedia entry: en.wikipedia.org/wiki/Bear_Swamp_Preserve 48 http://www.albanyny.org/Files/PressReleaseDrinkingWaterWinsNationalContest.pdf

44 Major Findings – Local Impacts

7.1.1 Industrializing Impacts to Rural/Agricultural Community Character

From the NYS DOH Public Health Review Major Findings: Community impacts associated with boom-town economic effects such as increased vehicle traffic, road damage, noise, odor complaints, increased demand for housing and medical care, and stress

The rural/agricultural character we enjoy in Westerlo would be transformed by the industrializing impacts of high volume hydraulic fracturing (HVHF) for Shale Gas Development (SGD). These impacts could affect our health and safety, our property values, mortgages and insurance, our farms and animals, our emergency first responders, our roads, scenic beauty, and the quiet enjoyment of life as we know it in the Hilltowns.

Some industrialization impacts could occur in Westerlo even if HVHF is prohibited by NYS, for example: Infrastructure Expansion (pipelines, compressor stations, CNG, LNG, and/or LPG facilities, storage yards, etc.) Waste Disposal, and Water Withdrawal.

Impacts to Westerlo would likely be similar to those described in the NYSDOH Public Health Review49, Community Impacts section:

“There are numerous historical examples of the negative impact of rapid and concentrated increases in extractive resource development (e.g., energy, precious metals) resulting in indirect community impacts such as interference with quality-of-life (e.g., noise, odors), overburdened transportation and health infrastructure, and disproportionate increases in social problems, particularly in small isolated rural communities where local governments and infrastructure tend to be unprepared for rapid changes (Headwaters, 2013).”

Industrializing impacts would vary depending on the type and scale of SGD processes, and some could affect us even if HVHF is effectively banned in New York State. SGD processes include:

1. Exploration of natural gas reserves tightly bound in shale rock

49 NYS DOH Report, “A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development”, December 2014

45 Major Findings – Local Impacts

2. Oil & Gas (O&G) business assessments

3. Landowner lease agreements and DEC permitting, well-siting, property consolidation, etc.

4. HVHF well construction and local infrastructure expansion

5. HVHF waste management (*)

6. Pipelines – Local, regional, in-state, interstate, international (*)

7. Compressor stations (*)

8. Liquified Natural Gas (LNG) facilities and transport (*)

9. Well abandonment & capping

10. Land Reclamation

ZRC focused on items 3-10. Each process has its own set of impacts, some that are shared, some that are cumulative, some that are short-term, and some that persist indefinitely. The processes marked with an asterisk (*) are related to SGD/HVHF infrastructure build-out and waste management. These processes would probably not be affected by a state-wide HVHF ban. Consequently, a state-wide HVHF ban would not protect Westerlo from potential impacts of these processes.

7.1.1.1. SGD/HVHF Wells and Industrial Infrastructure Expansion

Even a few SGD/HVHF wells in Westerlo would industrialize the rural/agricultural character of the town. Robert Nied, a director for The Center for Sustainable Rural Communities, has provided many NYS town boards and residents with information about SGD/HVHF impacts to rural communities. During the question and answer session at a ZRC meeting, he was clear that industrialization will occur if HVHF wells are developed in Westerlo. This industrializing impact is evident in other rural areas, such as northeastern Pennsylvania.

Some industrialization impacts could occur in Westerlo even if HVHF is prohibited by NYS, for example: Infrastructure Expansion, Waste Disposal, and Water Withdrawal.

46 Major Findings – Local Impacts

7.1.1.2. Local and Interstate Pipeline Expansion

SGD pipeline expansion is already in progress in our area:

New and existing right-of-ways for Iroquois Gas Pipeline (IGP) and Tennessee Gas Pipeline (TGP) are being explored in our area for co-location of additional high-pressure, high-volume pipelines.

• The proposed new124-mile long Constitution Pipeline, currently under NYSDEC review, was designed move HVHF gas from Pennsylvania to a substantially expanded IGC compressor station in Wright, Schoharie County, just over the border to the town of Knox.

▪ Many people along the proposed route of this new pipeline have been served with Eminent Domain condemnation notices.50

• IGP, which runs through Westerlo and connects to Wright, has announced its SoNo Project. This plan would reverse the direction of gas, currently flowing south from Canada to Wright, so that it would connect with the proposed Constitution pipeline at Wright and flow north to export HVHF gas to Canada and other foreign markets.

• The North East Direct (NED) project (TGP/Kinder Morgan) would expand pipeline infrastructure in our area: The proposed Project includes two components: (1) the Supply Path Component of the Project which is comprised of the proposed Project facilities from Troy, Pennsylvania, to [IGC compressor station at] Wright, New York, and (2) the Market Path Component of the Project, which is comprised of the proposed Project facilities from Wright, New York, to Dracut, Massachusetts.51:

◦ The proposed Project pipeline facilities in New York consist of approximately 95 miles of new 30- inch-diameter pipeline,also planned to be generally co-located with the proposed Constitution Pipeline Project for a majority of its length, extending to Wright, New York...as discussed above), as well as approximately 53 miles of new 36-inch-diameter pipeline generally co-located, with Tennessee’s existing 200 Line pipeline and an existing 50 http://www.stopthepipeline.org 51 (pgs 14-18) NED RR 1_12-05-14_Public CLEAN.PDF )

47 Major Findings – Local Impacts

utility corridor (referred to as the Wright to Dracut Pipeline Segment). A portion of the Wright to Dracut Pipeline Segment will be located in New York, and a portion will be located in Massachusetts, and New Hampshire ... The approximately 53 miles of 36-inch- diameter pipe will be located within or directly adjacent to Tennessee’s existing pipeline ROW [right-of-way] and the existing utility corridor, to the extent practicable, feasible and in compliance with existing law. The New York pipeline facilities will be designed for a MAOP [maximum allowable operating pressure] and MOP of 1,460 psig, [pounds per square inch] except for up to approximately 10.2 miles of pipe leaving the Supply Path Tail Station which is designed for 1,600 psig.52

52 NORTHEAST ENERGY DIRECT PROJECT, DOCKET NO. PF14-22-000, DRAFT ENVIRONMENTAL REPORT, RESOURCE REPORT 1, GENERAL PROJECT DESCRIPTION, PUBLIC NED RR 1_12-05-14_Public REDLINED.PDF Pg. 19

48 Major Findings – Local Impacts

7.1.1.3. Map of TGP/Kinder Morgan NED Pipeline Project

The following map shows proposed route of NED pipeline: 53

53 http://www.kindermorgan.com/content/docs/nedprojectmap.pdf

49 Major Findings – Local Impacts

7.1.1.4. Pipeline Fire Safety Concerns

The Deerfield, MA Fire Department’s Prudential Committee, in a report to Deerfield selectmen, wrote: “Departments that have dealt with pipeline fires report an incineration zone of a tenth of a mile radius. Flammable structures or fuel within that radius can be anticipated to expand the zone. In 2010, a faulty weld on a 30-inch gas pipeline in suburban San Francisco resulted in the death of eight people and the destruction of 20 homes. Although we are a rural community the pipeline will put some residents within an incineration zone. The diameter of the proposed pipeline is to be 36 inches to 42 inches.” 54 “We’re a small department, [said] Committee Chair Patrick O’Brian...“Kinder Morgan has been so closed mouthed about it, ... we’re going on .. other people’s experiences ... You’ll have inevitable leaks. I’m concerned.” “To think that our Deerfield Fire Department would be responsible for responding to an incident like this is ridiculous,” ... “We have no capacity. Who’s going to benefit from this? It’s not us. They’re just using our town and our resources, and that’s not right. I see no benefit to the town of Deerfield as a community.”

54 Davis, R ,Compressor stations reason for concern? , November 23, 2014 http://www.recorder.com/home/14464943-95/compressor-stations-reason-for-concern

50 Major Findings – Local Impacts

The following map is of pipelines in Westerlo:

Pipelines in Westerlo: Iroquois Natural Gas Transmission System, pathway through Westerlo (total path 416 miles from border of Canada to the Bronx in NYC), and the Enterprise Products Liquid Propane (LP) Pipeline pathway. Both pipelines meet on Kudlack Road.

51 Major Findings – Local Impacts

7.1.1.5. Pipeline Valve Stations

Pipeline valve stations are located at intervals along the route. For instance, in Westerlo:

Photo courtesy of P. Britton Example: Valve station, Enterprise (LP) pipeline, on CR 409 between CR 405 and CR 403. The odor of gas is quite noticeable here.

7.1.1.6. Compressor Stations

Compressor stations are located at optimum distances along natural gas pipelines to adjust pipeline pressure and to keep the gas moving. New or expanded pipelines require new or expanded compressor stations. Compressor stations use diesel powered turbine engines that often exceed EPA noise limits and are the source of air quality impacts from diesel exhaust and from both planned and unplanned (fugitive) methane emissions.

52 Major Findings – Local Impacts

One of the key findings is that the optimum [distance] is relatively flat in all cases. This means in particular that certain considerations may favor larger station spacing, with higher station pressure ratios and higher MAOP [Maximum Allowable Operating Pressure] in situations where pipelines are routed through largely unpopulated areas.55

In Deerfield, MA, a fourth generation apple grower and member of the Deerfield Fire Department, talking about the NED pipeline and compressor stations, said:

...his main concerns are quality of life, including noise, light and air pollution, not only from exhaust but also from routine off-gassing to adjust pressure and potential leaks, with a list of chemicals that have been found from monitoring compressor stations elsewhere — including benzene, carbon disulfide, toulene and radon. “We’re being good stewards of the land, trying to raise not just food, but our families in a healthy environment without worrying (about) who knows what any of us are breathing?” He, and another member of the Deerfield Fire Department, say they also have real concerns about public safety, especially given problems of access to wooded areas if a site near Hawks Road is selected. “Any type of fire along a pipeline, there’s nothing you can do until they shut the gas down,” Ben Clark says. “A rural fire department hasn’t any means of putting down a gas fire of that size. You’d have all of those miles of gas to burn off, and there could be a major wildfire on inaccessible land, where there are only a few ways in. You’d be talking about helicopter drops.”56

Describing the relationship between the NED TGP/Kinder Morgan company and the Town officials:

...”the Houston-based pipeline company has never formally informed Deerfield officials that current plans call for siting the compressor station in town, and the Board of Selectmen, which also serves as the Board of Health, has expressed outrage that the company has used photos of a 2,000- horsepower compressor station in Southwick as an illustration of what such a facility would look like, even though the facility here would be 60 times larger, at 120,000 horsepower. A total of 20 acres is needed for construction of the station. “This is just dramatically different. They were so disingenuous,” said Carolyn Shores Ness, who

55 Kirz, Rainer et al, Gas Compressor Station Economic Optimization, 2012, http://www.hindawi.com/journals/ijrm/2012/715017/ 56 Davis, R ,Compressor stations reason for concern? , November 23, 2014 http://www.recorder.com/home/14464943-95/compressor-stations-reason-for-concern

53 Major Findings – Local Impacts chairs the selectmen’s and health boards, which she says invited company representatives to meet with them but were rebuffed. “This is just info we’ve gleaned from their filing, and they still haven’t told us whether it’s going to be on Hawks Road or Woolman Hill.” Instead, the company’s most recent filing with the Federal Energy Regulatory Commission shows a four mile area — near the Conway line at the Deerfield River, west of Hawks Road, eastward to Trap Rock Ledge on Woolman Hill, where a 10-acre compressor station with four Titan 250 turbines would be placed.

The eight planned compressor stations for the project, according to TGP’s filing, help transport the gas by compressing it, increasing pressure and providing the energy to move it through the system. They are placed along the route at varying intervals based on the pipeline diameter — expected to be 36 inches — the volume of gas to be moved and the terrain. The unmanned stations, which operate around the clock, are typically located on sites that average about 25 to 30 acres, Kinder Morgan spokesman Richard Wheatley has previously said. Wheatley said more compressor stations with a lesser amount of horsepower at each is an option, but that “fewer compressor stations means that fewer landowners are impacted, there is less potential environmental and archaeological disturbance, and fewer stations also provide better economies of scale57.

7.1.1.7. Liquified Natural Gas (LNG) Facilities

LNG is extremely volatile and must be super-cooled (to minus 259 degrees F 58) for storage to prevent vaporization. New LNG facilities had been effectively banned in NYS since 1973, when an explosion at a Staten Island facility killed 40 people, . But in January 2015, NYSDEC issued new regulations59 to permit LNG facilities in the state.

Rural areas may be preferred locations for LNG facilities because blast zones would affect fewer people and less property than if LNG facilities are located in urban or suburban areas. Siting criteria and setbacks are missing from the NYSDEC regulations:

• “Lack of siting criteria could allow LNG facilities anywhere else in the State:

◦ The proposed regulations fail to propose any objective siting criteria for LNG facilities anywhere in the state.

57 Davis, R ,Compressor stations reason for concern? , November 23, 2014 http://www.recorder.com/home/14464943-95/compressor-stations-reason-for-concern 58 http://geology.com/articles/lng-liquefied-natural-gas/ 59 http://www.sourcewatch.org/index.php/New_York_LNG_regulations

54 Major Findings – Local Impacts

◦ No setbacks from existing structures or uses are suggested. ◦ This lack of setbacks for LNG infrastructure mirrors the lack of setbacks for gas production infrastructure in New York. ◦ Unless federally licensed most LNG storage and refueling facilities should be subject to local land use ordinances.”60

7.1.1.8. LNG Safety Concerns

This LNG Safety Information from: Answering Questions about Liquified Natural Gas (LNG)61

• If LNG spills into water, it explodes. If it spills on the ground, it turns into rapidly expanding clouds of vaporizing methane that can asphyxiate by displacing oxygen and flash-freeze human flesh.62 If ignited at the source, these vapors become flaming “pool fires” that burn hotter than other fuels and cannot be extinguished.63 Drifting in the wind, an ignitable vapor cloud can threaten large populations. Highly volatile LNG cannot be odorized, so there is no warning of a leak. … a deadly explosion in 1973 blew apart an empty LNG tank in Staten Island and killed 40 people.64

• LNG plants discharge wastewater laced with mercury and toxic hydrocarbons.65...before the gas is liquified it must be purged of freezable benzene. In New Brunswick [Canada] in fall 2013, 7500 migrating songbirds were killed in a single night while flying over an LNG facility that was flaring off gas.66 In San Diego [CA] LNG vehicles have contributed to smog.67 In Australia, LNG plants are responsible for nitrogen dioxide emissions that exceed safe limits.68 60 http://www.sourcewatch.org/index.php/New_York_LNG_regulations 61 Answering Questions about Liquified Natural Gas (LNG),A Fact Sheet by Americans Against Fracking, April 2014, LNG-final-primer.pdf 62 U.S. Deptartment of Transportation, Federal Transit Administration, Summary Assessment of the Safety, Health, Environmental and System Risks of Alternative Fuel, April 1999, http://ntl.bts.gov/lib/000/400/422/20021101_alt_fuel.pdf 63 Congressional Research Service, Liquefied Natural Gas (LNG) Infrastructure Security: Background and Issues for Congress, 9 Sept. 2003, http://www.energy.ca.gov/lng/documents/CRS_RPT_LNG_INFRA_SECURITY.PDF. 64 Paulsen, K, “40 Years Ago: Staten Island LNG Explosion Killed 40 Workers,” Staten Island Advance, 10 Feb. 2013. http://www.silive.com/news/index.ssf/2013/02/40_years_ago_today_staten_isla.html. 65 International Finance Corporation, “Environmental, Health, and Safety Guidelines for Liquefied Natural Gas (LNG) Facilities,” 30 April 2007, http://www.ifc.org/wps/wcm/connect/87e7a48048855295ac04fe6a6515bb18/Final%2B- %2BLNG.pdf?MOD=AJPERES&id=1323161924903. 66 CBC News, “7,500 Song Birds Killed at Canaport Gas Plant in Saint John,” 18 Sept. 2013. http://www.cbc.ca/news/canada/newbrunswick/7-500-songbirds-killed-at-canaport-gas-plant-in-saint-john- 1.1857615. 67 ABC News, “Pollution Fears Aired Over Curtis Island LNG Plant Approval,” 8 Oct. 2013, http://www.abc.net.au/news/2013-10-08/pollution-fears-aired-over-curtis-island-lng-plant-approval/5008422; Soto, O.R.,“Gas From Afar Pollutes Here, Critics Say – County Officials Concerned that Use of LNG Will Lead to More Smog in Region,” San Diego Union-Tribune, 13 Jan. 2011. 68 Gramenz,, E. “Pollution Fears Aired Over Curtis Island LNG Plant Approval,” ABC News, 8 Oct. 2013. http://www.abc.net.au/news/2013-10-08/pollution-fears-aired-over-curtis-island-lng-plant-approval/5008422

55 Major Findings – Local Impacts

• LNG tanks and ships are terrorist targets....In its 2008 report, Liquified Natural Gas (LNG) Infrastructure Security, the Congressional Research Service warned, “LNG infrastructure is inherently hazardous and potentially attractive to terrorists...Local officials have challenged numerous LNG infrastructure proposals on the grounds that they may represent an unacceptable risk to the public.” If an LNG tanker ship lost ten percent of its cargo and the resulting three million gallon spill of LNG ignited, the flaming vapor cloud could extend for three miles – and burn human flesh a mile beyond that. LNG ships and terminals require security zones, gunboat escorts, and intense surveillance.

7.1.1.9. Compressed Natural Gas (CNG) Facilities

CNG Tank Storage. CNG is used as a vehicle fuel. Compressed Natural Gas or CNG is stored on the vehicle in high-pressure tanks - 20 to 25 Mpa (200 to 250 bar, or 3,000 to 3,600 psi). Natural gas consists mostly of methane and is drawn from gas wells or in conjunction with crude oil production. As delivered through the pipeline system, it also contains hydrocarbons such as ethane and propane as well as other gases such as nitrogen, helium, carbon dioxide, sulphur compounds, and water vapour. A sulphur-based odourant is normally added to CNG to facilitate leak detection69.

7.1.1.10. Liquified Petroleum Gas (LPG) Facilities

LPG Tank Storage such as the Main Care facility on SR 85 in Westerlo.

7.1.1.11. Material Storage Yards

Store materials used for construction and maintenance of SGD/HVHF facilities

69 Alternative Fuel Systems Inc., http://www.afsglobal.com/faq/gas-comparisons.html

56 Major Findings – Local Impacts

7.2 Social Impacts

The introduction of SGD/HVHF to a community can introduce or increase a number of social problems.

A Food & Water Watch case study70 of social impacts of SGD/HVHF found that traffic accidents, civic disturbances and public health problems in rural Pennsylvania counties have increased since the shale rush began in 2005, diminishing the quality of life for residents of once- bucolic communities.

Their Key Findings:

• Fracking is associated with more heavy-truck crashes: Heavy-truck crashes rose 7.2 percent in heavily fracked rural Pennsylvania counties (with at least one well for every 15 square miles) but fell 12.4 in unfracked rural counties after fracking began in 2005.

• Fracking is associated with more social disorder arrests: Disorderly conduct arrests increased by 17.1 percent in heavily fracked rural counties, compared to 12.7 percent in unfracked rural counties.

• Fracking is associated with more cases of sexually transmitted infect ions: After fracking, the average increase in chlamydia and gonorrhea cases was 62 percent greater in heavily fracked rural counties than in unfracked rural counties.

The following are relevant excerpts from the this same report:

• Energy boomtowns often face rising levels of crime, substance abuse, mental illness and suicide, housing shortages, price inflation, divorce, school overcrowding and overextended public services.

• Heavy-truck crashes increased 7 percent in heavily fracked rural Pennsylvania counties but declined 12 percent in unfracked rural counties once fracking began: The average annual number of heavy-truck crashes increased 7.2 percent in heavily fracked counties (with at

70 The Social Costs of Fracking- A Pennsylvania Case Study, Food and Water Watch, http://foodandwaterwatch.org

57 Major Findings – Local Impacts

least one well for every 15 square miles), rising from an average of 284 crashes a year in the pre-fracking period (2000 to 2005) to an average of 304 crashes in the post-fracking period (2005 to 2010)

• The large influx of transient fracking workers can lead to higher levels of social disorder, especially substance abuse and alcohol-related crimes. The socially isolated workers have ample incomes and little to occupy their time in rural communities.

• The Pennsylvania State Police linked increased crime to natural gas workers, which burdens state and local police departments.50 The police chief in Wellsboro, Pa., attributed significant increases in alcohol-related crime, including public intoxication, bar-room brawls and drunk driving, to shale gas industry workers.51 For example, the average annual number of public intoxication arrests rose 11.9 percent in the post-fracking period in heavily fracked rural counties and 8.7 percent in all fracked rural counties. The most-fracked Pennsylvania communities have experienced steep upticks in drunken driving, tra3ic violations and bar fights.

• Disorderly conduct arrests rose a third more steeply in heavily fracked rural counties after fracking began than in unfracked rural counties: The average annual number of disorderly conduct arrests in the most heavily fracked counties rose 17.1 percent, from 1,336 prior to commercial fracking (2000 to 2005) to an average of 1,564 per year a8er fracking. (See Figure 5.) This increase is one-third higher than the 12.7 percent increase in the average annual number of disorderly conduct arrests in unfracked rural counties.

• Energy booms can contribute to public health problems as transient workers overwhelm the capacity of rural hospitals and health systems are inundated with new, often-uninsured patients and public health problems, including an increase in the incidence of occupational injuries, tra3ic accidents, mental illness, substance abuse and sexually transmitted infections (STIs).

• Fracking is associated with increased cases of sexually transmitted infections and assault. In oil boomtowns in North Dakota, doctors are treating more chlamydia cases, sexual and domestic assault rates have increased, and many local women have reported feeling unsafe. Pennsylvania’s gas boom has been linked to a rise in sexually transmitted infections.56 In Bradford County (one fracking well for every square mile), a hospital attributed an increase in STIs to the Marcellus Shale industry.

• During the post-fracking period, the number of cases of sexually transmitted infections increased twice as fast in heavily fracked counties a s in unfracked counties: After fracking began, the number of chlamydia and gonorrhea cases increased by an average of 8.0 percent a year in the most heavily fracked rural counties, more than twice the 3.8 percent a year average increase in unfracked rural counties. (See Figure 8.) All fracked rural counties had an average annual increase of 4.6 percent.

58 Major Findings – Local Impacts

7.3 Air Quality and Atmosphere

From the NYS DOH Public Health Review Major Findings:

• Air impacts that could affect respiratory health due to increased levels of particulate matter, diesel exhaust, or volatile organic chemicals.

• Climate change impacts due to methane and other volatile organic chemical releases to the atmosphere.

7.3.1 New York State Air Quality Tracking

Air quality in New York is monitored by NYSDEC. The closest monitoring stations to Westerlo are in Albany and Loundonville.

DEC measures air pollutants at more than 50 sites across the state, using continuous and/or manual instrumentation. These sites are part of the federally-mandated National Air Monitoring Stations Network and the State and Local Air Monitoring Stations Network. Real time direct reading measurements include gaseous criteria pollutants (ozone, sulfur dioxide, oxides of nitrogen, carbon monoxide), PM (fine particulate with diameter less than 2.5 microns), and meteorological data. Filter based PM, lead, and acid deposition samples are collected manually and shipped to the laboratory for analysis. Monitoring air for pollutants is a complex technical task, requiring not only direct measurement, but also measurement standards and quality assurance to ensure that the information provides a correct understanding of air quality in New York State. Ambient air quality reports provide the data and interpretations to the technical community and the public. DEC also operates the Photochemical Assessment Monitoring Stations (PAMS) and the National Ambient Toxics Trend Stations (NATTS) as part of the EPA supported national networks. The PAMS network monitors volatile organic compounds as ozone precursors during the summer ozone season. All of the above monitoring is done for the purpose of determining the quality of the ambient air in the state so that programs can be developed to target the appropriate source categories for emission reductions. DEC is a partner in the EPA NATTS network, and these sites have become part of the New York State Volatile Organic Compound (VOC) ambient monitoring network that has been in operation by BAQS since 1990. Methodologies are continually being developed nationally for other compounds of concern.71

71 http://www.dec.ny.gov/chemical/8406.html

59 Major Findings – Local Impacts

Figure: NY Air Monitoring Sites72

72 http://www.dec.ny.gov/chemical/

60 Major Findings – Local Impacts

The SGD industry is exempt from several significant Federal environmental laws that apply to other industries, including the Clean Air Act (CAA). In NY the EPA delegates authority to NYSDEC, and it's up to the NYSDEC to assess air quality impacts and issue permits.

Air quality impacts are more significant within certain ranges of Stationary Sources (HVHF wells, Compressor Stations, and other methane emitting processes).

Stationary Source Air Permits are administered by the NYSDEC based on the level of emissions.

Small sources Register with DEC; no Environmental Notice Bulletin (ENB) notice Medium sources State Facility Permit; maybe ENB notice Large sources Title V Facility Permit; ENB notice

The permit process basically follows these paths:

Draft Permit → Comment Period → Final Permit Final Permit → EPA Review → Permit Issued 73

Title V Air quality permits are usually issued for a period of up to five years. State facility permits are issued for a period not to exceed ten years 74

7.3.2 Local Air Pollution

This section excerpted from: Clark, C. et al, “Hydraulic Fracturing and Shale Gas Production: Technology, Impacts and Regulations”, 2013, Agronne National Laboratory, U.S. Department of Energy, U of Chicago, Chicago, IL.

Shale gas production activities can produce significant amounts of air pollution that could impact local air quality in areas of concentrated development. In addition to GHGs [Green House Gas], fugitive emissions of natural gas can release volatile organic compounds (VOCs) and hazardous air pollutants (HAPs), such as benzene. Nitrogen oxides (NOx) are another pollutant of concern, as drilling, hydraulic fracturing, and compression equipment—typically powered by large internal combustion engines—produce these emissions.

73 Podulka, W., Presentation,at conference: Protecting Communities from Fracking's Collateral Damage, Nov 2014 74 http://www.dec.ny.gov/chemical/32249.html

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Several state emission inventories have shown that oil and natural gas operations are significant sources of local air pollution (e.g., the 2008 Colorado emission inventory showed that they accounted for 48% of VOCs, 18% of NOx, and 15% of benzene) and that shale gas operations may lead to increased levels of ozone and HAPs near these areas (Wells 2012). However, uncertainty about the impacts of these emissions exists, as air quality is highly dependent on local conditions. For example, in some areas VOC emissions will not be the primary driver of ozone formation; therefore, detailed modeling is required to understand the impact of emissions on local air quality. In addition, while elevated levels of benzene emissions have been found near production sites, concentrations have been below health-based screening levels, and with little data on how these HAP emissions impact human health, further examination is needed (Alvarez 2012).

Another local air pollutant of growing concern is crystalline silica dust, which can be generated from the sand proppant. Silica dust can be generated in the mining and transporting of sand to the well site and in the process of moving and mixing sand into the hydraulic fracturing fluid on the well pad. Crystalline silica dust within the respirable size range (<4 microns) is considered a HAP and a carcinogen. In addition to an increased risk of lung cancer, exposure to crystalline silica can lead to a chronic, inflammatory lung disease called silicosis (Wisconsin Department of Natural Resources 2011). A recent field study of 11 different hydraulic fracturing sites in five different states by researchers at the National Institute for Occupational Safety and Health (NIOSH) found levels of crystalline silica that exceeded NIOSH recommended exposure limits (REL) in 79% of the samples and far exceeded the REL by a factor of 10 or more in 31% of the samples. The researchers concluded that existing safeguards may not be sufficiently protective of worker health and that additional safeguards should be put in place (Esswein et al. 2012).

7.3.3 Sand Dust (Crystalline Silica) – A Respiratory Hazard

OSHA/HIOSH Issues a Hazard Alert75 for Industry Workers:

Why is silica a concern for workers during hydraulic fracturing?

Recent NIOSH field studies identified overexposure to airborne silica as a health hazard to workers.

Large quantities of silica sand are used during hydraulic fracturing. Sand is delivered via truck and then loaded into sand movers, where it is subsequently transferred via conveyor belt and blended with other hydraulic fracturing fluids prior to high pressure injection into the drilling hole. Transporting, moving, and refilling silica sand into and through sand movers, along transfer belts, and into blender hoppers can release dusts containing silica into the air. Workers can be exposed if they breathe the dust into their lungs.

75 https://www.osha.gov/dts/hazardalerts/hydraulic_frac_hazard_alert.ht

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NIOSH identified seven primary sources of silica dust exposure during hydraulic fracturing operations: • Dust ejected from thief hatches (access ports) on top of the sand movers during refilling operations while the machines are running (hot loading). • Dust ejected and pulsed through open side fill ports on the sand movers during refilling operations • Dust generated by on-site vehicle traffic. • Dust released from the transfer belt under the sand movers. • Dust created as sand drops into, or is agitated in, the blender hopper and on transfer belts • Dust released from operations of transfer belts between the sand mover and the blender;

What are the symptoms of silicosis?

Silicosis is classified into three types: chronic/classic, accelerated, and acute.

Chronic/classic silicosis, the most common type, occurs after 10–20 years of moderate to low exposures to respirable crystalline silica. Symptoms associated with chronic silicosis may or may not be obvious; therefore, workers need to have a chest x-ray to determine if there is lung damage. As the disease progresses, the worker may experience shortness of breath when exercising and have clinical signs of poor oxygen/carbon dioxide exchange. In the later stages, the worker may experience fatigue, extreme shortness of breath, cough, and, in some cases, respiratory failure.

Accelerated silicosis can occur after 5–10 years of high exposures to respirable crystalline silica. It is similar to chronic silicosis, but progresses more rapidly.

Acute silicosis occurs after only a few months or a few years following exposures to extremely high levels of respirable crystalline silica. Symptoms of acute silicosis include rapidly progressive and severe shortness of breath, weakness, and weight loss. Though much less common than other forms of silicosis, acute silicosis nearly always leads to disability and death.

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7.4 Water Resources

From the Westerlo Comprehensive Plan: ...to ensure that zoning in the Town of Westerlo: Protects and preserves existing water resources g

Westerlo is rich in water resources that supply the Middle Hudson, Mohawk and Schoharie watersheds.

The Basic Creek, Hannacrois Creek (both Class A(TS) Streams) and the Eight Mile Creek contribute to the Middle Hudson watershed.76 The Basic Creek Reservoir (a Class A waterbody) supports local fisheries (Brown Bullhead, Bluegill, Black Crappie, Largemouth Bass, Pumpkinseed, Smallmouth Bass, Walleye, Yellow Perch77), and is used, as it was in Winter 201578, to divert water into the Alcove Reservoir, which is the main drinking water supply for the City of Albany.

The Fox Creek, Onderdonk Lake, Warner Lake and smaller tributaries contribute to the Mohawk Drainage Basin through the Schoharie Creek watershed.79

Bear Swamp Preserve is a Nature Conservancy preserve and National Natural Landmark.80 Many small, unnamed ponds, creeks and wetlands contribute to the diversity of Westerlo water resources.

7.4.1 NYSDEC Classification of Waters

All waters of the state are provided a class and standard designation based on existing or expected best usage of each water or waterway segment.

76 NYS Agricultural Environmental Management (AEM), Albany County AEM Strategic Plan, Albany County Soil and Water Conservation District (SWCD), PO Box 497, 24 Martin Road, Voorheesville, NY 12186 77 http://www.dec.ny.gov/docs/fish_marine_pdf/bsccrkreslkmap.pdf 78 Personal communication 79 2010 Mohawk River Basin WI/PWL-Schoharie Creek Watershed 80 Wikipedia entry: en.wikipedia.org/wiki/Bear_Swamp_Preserve

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• The classification AA or A is assigned to waters used as a source of drinking water. • Classification B indicates a best usage for swimming and other contact recreation, but not for drinking water. • Classification C is for waters supporting fisheries and suitable for non - contact activities. • The lowest classification and standard is D. Waters with classifications A, B, and C may also have a standard of (T), indicating that it may support a trout population, or (TS), indicating that it may support trout spawning (TS). Special requirements apply to sustain these waters that support these valuable and sensitive fisheries resources.81

7.4.2 Albany County Watersheds

The 2010 Albany County NYS Agricultural Environmental Management (AEM)82 adopted three planning units that represent the three major watersheds in the County. They are the Middle Hudson Watershed, Mohawk Watershed and the Schoharie Watershed.

7.4.2.1. The Middle Hudson Watershed

Source for this section: NYS Agricultural Environmental Management (AEM), Albany County AEM Strategic Plan, Albany County Soil and Water Conservation District (SWCD)

The Middle Hudson Watershed covers the majority of Albany County. It is comprised of several smaller watersheds that were previously used as planning units for our original county AEM Strategy. The following list displays the watershed […] that makeup the Middle Hudson Watershed in Albany County:

• Normanskill • Onesquethaw-Coeymans • Hannacrois Creek • Upper Catskill Creek • Basic Creek • Vlomanskill

81 http://www.dec.ny.gov/regs/4592.html 82 NYS Agricultural Environmental Management (AEM), Albany County AEM Strategic Plan, Albany County Soil and Water Conservation District (SWCD), PO Box 497, 24 Martin Road, Voorheesville, NY 12186

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Albany County: Major Watersheds

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Albany County: Detailed Watersheds

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7.4.3 Bear Swamp

The Nature Conservancy’s Bear Swamp Preserve, was designated a Registered National Natural Landmark by the Department of Interior in 1973. Bear Swamp itself dates from 13,000 years ago, with the retreat of the last glacier. The interior of Bear Swamp supports a relic stand of giant rhododendron, the northernmost in New York State.83

Bear Swamp Preserve is a Nature Conservancy preserve and National Natural Landmark. It consists of a pond and surrounding 310 acres of swamp and woodland. It is recognized for its Great Laurel tree population. It has two nature trails totaling about 2 miles (3.2 km)84. The National Natural Landmarks (NNL) Program recognizes and encourages the conservation of outstanding examples of the natural history of the United States. It is the only natural areas program of national scope that identifies and recognizes the best examples of biological and geological features in both public and private ownership. The program was established on May 18, 1962, by United States Secretary of the Interior Stewart Udall. The program aims to encourage and support voluntary preservation of sites that illustrate the geological and ecological history of the United States. It also hopes to strengthen the public's appreciation of the country's natural heritage. As of October 17, 2012, 594 sites have been added to the National Registry of National Landmarks. The registry includes nationally significant geological and ecological features in 48 states, American Samoa, Guam, Puerto Rico, and the Virgin Islands.85

83 Nature Conservancy website: http://www.nature.org/ourinitiatives/regions/northamerica/unitedstates/ newyork/placesweprotect/easternnewyork/wherewework/eny-bear-swamp-preserve 84 Wikipedia entry: en.wikipedia.org/wiki/Bear_Swamp_Preserve 85 Wikipedia entry on National Park Services National Natural Landmarks Program: en.wikipedia.org/wiki/ National_Natural_Landmark

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7.4.4 Flood Zones

Figure: Source for this map is the Westerlo Comprehensive Plan

Source for the following section: Albany County, NY, Countywide Flood Insurance Study, Preliminary – March 2012.

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Figure: Albany County, NY, Countywide Flood Insurance Study, Preliminary – March 2012, Panel 0382D, 36001C0382D

There are no flood protection measures located within the Town of Westerlo. The Basic Creek Reservoir was formed with a fixed concrete spillway and is used for water supply purposes only. Non-structural measures of flood protection are being utilized in the Villages of Altamont and Voorheesville as well as the Towns of Bethlehem, Coeymans, Guilderland, New Scotland and Westerlo to aid in the prevention of future flood damage. These measures are in the form of land use regulations which control building within areas that have a high risk of flooding.

Basic Creek and Eightmile Creek

The study streams within the Town of Westerlo are large, rural basins. A nearby stream, Coeymans Creek, had 10 years of systematic gage data; both Basic Creek and Eightmile Creek are ungaged. Two regional analyses were considered for use in computing peak discharges. An USACE regional frequency analysis used gage data throughout the upper Delaware and Hudson River basins to formulate regression equations for computing peak discharges for ungaged streams

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(USACE, 1974b). The parameters of drainage area, mean annual flood peak, standard deviation and skew were used in the regression equations. A USGS regional frequency analysis used gage data throughout New York State to formulate regression equations using the parameters of drainage area, average basin slope, and mean annual precipitation (USGS, 1979a). These results were compared with flows computed by a log-Pearson Type III analysis of USGS gage data (USGS, 1979b). An average of the two methods gave results that matched the gaged flows. The average of the two methods was used to compute peak discharges for Basic Creek and Eightmile Creek (FEMA, 1989b).

Hannacrois Creek

For Hannacrois Creek in the Towns of Coeymans and Westerlo, two regional analyses were considered for use in computing peak discharges. An USACE regional frequency analysis used gage data throughout the upper Delaware and Hudson River basins to formulate regression equations for computing peak discharges for ungaged streams (USACE, 1974b). The parameters of drainage area, mean annual flood peak, standard deviation and skew were used in the regression equations. A USGS regional frequency analysis used gage data throughout New York State to formulate regression equations using the parameters of drainage area, average basin slope, and mean annual precipitation. These results were compared with flows computed by a log-Pearson Type III analysis of USGS gage data (USGS, 1979a). An average of the two methods gave results that matched the gaged flows. The average of the two methods was used to compute peak discharges for Hannacrois Creek (FEMA, 1989a; 1989b).

7.5 Local Water Resources – Potential Impacts

From the NYSDOH Public Health Review Major Findings:

• Drinking water impacts from underground migration of methane and/or fracking chemicals associated with faulty well construction.

• Surface spills potentially resulting in soil and water contamination.

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7.5.1 Water Contamination

As described in the Water Resources Inventory section, Westerlo contains two Class A(TS) streams (Basic Creek and Hannacrois Creek) and one Class A water supply waterbody (Basic Creek Reservoir).

SGD/HVHF contamination of Westerlo watersheds would have both local and regional impacts and could have far-reaching impacts. Private drinking wells could be affected as they have been in other areas. For instance, in August 2014 Pennsylvania Department of Environmental Protection (PA DEP) released details of 283 cases in which state regulators found that HVHF/SGD companies contaminated private drinking water wells86,87. NYSDEC acknowledged the potential for water contamination when it exempted the New York City and Syracuse watersheds from SGD/HVHF operations88.

The SGD industry is exempt from major Federal environmental laws, meant to protect water resources, that apply to other industries: Safe Drinking Water Act (SDWA), Clean Water Act (CWA). Chemicals, radioactive material and concentrated salts can enter the air, water and soil from SGD/HVHF processes. Well casings, designed to be barriers between HVHF wells and drinking water sources, can fail. Well flowback water may be accidentally or deliberate discharged onto the surface leaching into soil, flowing into surface water sources, and evaporating into air. Flowback water may be stored indefinitely in large, open evaporation pits,. Sometimes flowback water is reinjected underground. This practice has been associated with earthquakes89. SGD/HVHF companies are exempt from Underground Injection Control (UIC) regulations that apply to other industries.

Baseline water testing90 is essential in SGD/HVHF areas to document “background” conditions, but it is ineffective as a deterrent to contamination. The SGD industry is not required

86 AP, Kevin Begos, Michael Rubinkam, Fracking contaminated drinking water wells in PA, August 28, 2014 87 See page 182,Appendix: PADEP Private Water Well Contamination 88 NYSDEC Revised Draft SGEIS, 2011 89 Ellsworth, W.L. Injection-Induced Earthquakes. Science. July 2013 90 New York State Water Resources Institute, Department of Earth and Atmospheric Sciences. Cornell University, Ithaca, NY, http://wri.eas.cornell.edu

72 Major Findings – Local Impacts to disclose the chemicals it uses in its operations, so knowing exactly what to test for is a problem. It is also expensive. Many homeowner would find the cost, minimally $570,91 and frequency92 of baseline and follow-up testing prohibitive. In many cases litigation is the route landowners must take to get remedy for water-related problems. In some cases, there is no remedy, and the impacts to health and property are significant.

(For a more complete discussion of potential water contaminants, see Public Health and Safety starting page 115 .)

7.5.2 Water Extraction

A single SGD/HVHF wellbore requires 2.3 – 5.5 million gallons of water93. Even if NYS bans HVHF, water could potentially be extracted for out-of-state HVHF operations, as it has been in the NY town of Painted Post, NY94.

A small village in Ohio is being sued by Oklahoma-based Gulfport Energy over HVHF water withdrawals.:

Gulfport bought more than 180 million gallons of water from the town last year. That water use, combined with a dry fall, prompted the village to temporarily shut off water to Gulfport Energy. Now, a second company has a water agreement, and there might not be enough water to go around. Gulfport Energy alleges in the lawsuit that the village of Barnesville, population 4,100, violated its agreement to provide water from its reservoir by entering into a contract with oil and gas company Antero Resources. Gulfport says the village’s contract with Antero allows for withdrawals beyond what Gulfport is allowed to take. Gulfport’s water supply can be shut off whenever water levels in the reservoir create a risk to the health and safety of the village residents and businesses. Last fall, the reservoir was down three feet below average when village officials stopped all outside withdrawals. “We felt like we had to shut everyone off to protect the regular users,” said village solicitor Marlin Harper. “We don’t have unlimited water.”

91 St Peter's Hospital Environmental Laboratory, personal communication to Britton, P, ,Oct 23, 2014. 92 St Peter's Hospital Environmental Laboratory, personal communication to Britton, P, ,Oct 23, 2014. 93 Clark, C., Han, J., Burnham, A., Dunn, J., and Wang, M., 2011, Life-Cycle Analysis of Shale Gas and Natural Gas, ANL/ESD/11-11, Argonne National Laboratory, Argonne, IL. 94 Mantius, Peter, New York State Allows Water Grab,October 29, 2014, ,http://www.dcbureau.org/2014102910051/natural-resources-news-service

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[Last year} ...only Gulfport pumped water out of the reservoir... So ...that’s not the reason Gulfport’s water supply was shut off. During the unusually dry fall, water withdrawals by Gulfport alone were too much for the reservoir to sustain.95 Pipelines also require large amounts of water extraction for hydrostatic testing for pressure and leaks. This water used is typically diverted from its source, pressurized and run through pipeline sections (collecting contaminants from within the pipe), and returned some distance later to its source.

7.5.3 Limits of Water Treatment

SGD/HVHF flowback water cannot be restored to the water cycle without treatment, and there is debate about the effectiveness of existing water treatment for two main reasons:

• Chemical Disclosure: Since SGD/HVHF operators are not required to disclose the additives used, treatment of all possible chemicals contained in the waste water is cost prohibitive

• Radioactive material: Radium 226 (RA226) and Radium 228 (RA228) are present in Marcellus Shale. They are soluble in water, may enter drinking water sources, and cannot be removed by water treatment plants.96 Radium-226, the most common isotope, is an alpha emitter, with accompanying gamma radiation, and has a half-life of about 1600 years. Radium-228, is principally a beta emitter and has a half-life of 5.76 years. Radiation levels exceeding EPA standards have been detected in both solid and liquid SGD/HVHF waste97.

• In spite of the ineffectiveness of treating SGD/HVHF liquid waste, much of this material that is processed through water treatment facilities is simply discharged with the rest of the waste stream.98

95 Page, S,http://thinkprogress.org/climate/2015/03/24/3637048/fracking-all-the-water-away/, March 24, 2015 96 Downs, Roger, Testimony, Forum on the Public Health and Environmental Risk Posed by Hydraulic Fracturing By- Products and the Acceptance Thereof by NYS Publicly Owned Treatment Works and Landfills, May 13, 2014 97 Downs, Roger, Testimony, Forum on the Public Health and Environmental Risk Posed by Hydraulic Fracturing By- Products and the Acceptance Thereof by NYS Publicly Owned Treatment Works and Landfills, May 13, 2014 98 Ibid

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If flowback water is used multiple times, as it sometimes is, to refracture (workover) a well, contaminants are even more densely concentrated.

7.5.4 Water Testing and Monitoring

Water well testing for SGD/HVHF chemicals could be very costly for both the Town and its property owners. Basic water tests that a homeowner can manually sample themselves and bring to a testing lab (for use for home insurance or mortgage purposes) are currently $35 each at St Peter’s Hospital Environmental Laboratory (SPHEL - formerly Bender Labs), in Albany. These basic tests are not valid as baseline pre SGD/HVHF tests. Professional lab personnel must gather pre SGD/HVHF baseline water samples and test them for the set of “signature chemicals” currently used in shale gas extraction technology.99 This kind of testing is very costly. ZRC inquiries regarding costs for HVHF baseline testing were answered by SPHEL and by Adirondack Water Testing (October 2014), and by The Community Science Institute(November 2014). SPHEL has done testing for SGD/HVHF in the past. Mr. Brian Collins, Quality Assurance Officer at SPHEL, presented a current price list of what he believed to be the minimum testing that should be conduced for a pre-SGD/HVHF baseline values. His list includes a minimum set of tests that includes the basic ($35) test and additional tests for chemicals and components associated with HVHF:

99 Adirondack Environmental Services, Inc, Steve Valle, Marketing Director per phone quote Oct 2014 stated tests should be done monthly when fracking is occurring and average $500-700 each

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Water Test Cost Total coliform and E. coli $35.00 Primary and Secondary Standards: Analyses for arsenic, barium, cadmium, chromium, fluoride, lead, mercury, nitrate, selenium, silver, chloride, copper, corrosivity, iron, manganese, sodium, sulfate, zinc, color, odor, turbidity, pH, alkalinity, total dissolved solids (TDS) and calcium hardness. $ 290.00 Hydrocarbons POCs/VOCs: Hydrocarbon analyses consists of the testing for components found in fuel oil, gasoline, etc. $ 125.00 Metals Metals II: Analyses for antimony, beryllium, nickel, thallium and cyanide. $ 120.00 Minimum cost per SGD/HVHF test sample: $570.00

7.5.4.1. A Town Water Testing Plan

Documenting pre SGD/HVHF water quality is essential for providing a legal basis for determining responsibility for contamination and for remediation and cleaup liability. A plan for pre SGD/HVHF baseline water testing for the Town should include a representative sample of private wells, the Water District in the hamlet, and various groundwater sources such as ponds, streams and wetlands throughout the township. Westerlo is 57 square miles. Baseline testing that provides the Town and landowners with the best water quality protection would need to map the entire area for representative sampling. If divided into 4 square mile sections, 14 sections of private water wells, ponds, streams, farm ponds and wetlands would be created. If five pre SGD/HVHF baseline tests were conducted per area, covering a sample of water wells and surface water, the costs for the initial baseline tests could cost the Town, at current prices, at least $39,900 (i .e. $570 X 70 tests). SPHEL offers a 10% discount to municipalities creating their baseline tests, which still at least a $35,910 cost. Ideally testing over a year to record possible seasonal changes would be useful. Groundwater is known to be fairly stable in any area, so multiple tests before and after drilling help clarify the difference between contamination events and natural variability. At $570 for each set of tests, this is beyond the scope of most private citizens.

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7.5.4.2. Baseline Water Testing

NYS Water Resources Institute recommends all those within 2000 ft get tested, while they recommend that those within 1 mile should consider testing.100 To create a baseline test as a legally defensible form of insurance in case contamination occurs, it is recommended that all homeowners, livestock and produce farmers within 2500 ft of a SGD/HVHF well get their well water and surface pond waters tested prior to HVHF to document current pre-SGD/HVHF conditions. The PA Department of Environmental Protection issued a Letter of Determination proving private water well contamination at 2500 ft from HVHF activity in Susquehanna County, PA .101 To make the distance of 2500 ft understandable in local terms, it is the distance between where the Town Hall Building is on Rte 401 and the corner of Anable Road at the Clifford B Hannay Museum, a distance most people in Westerlo can imagine. Testing provided by SGD companies are not legally useful to residents or to the Town. If water tests are conducted and paid for by a person or entity other than the landowner or Town, only the purchaser has the legal right to the test results.102 The Gas companies are not obligated to share the test results with neighboring landowners. Landowners need to be aware that to legally prove contamination, they need to be in control of the water tests. Tests also must be conducted within a proper time frame to have legal value. In NYS this means that tests should be conducted within 6 months of the start of SGD/HVHF activities103. To legally prove that a SGD company is responsible for groundwater pollution to neighboring properties adjacent to HVHF wells, the initial tests must substantiate that the groundwater was

100 New York State Water Resources Institute, Department of Earth and Atmospheric Sciences. Cornell University, Ithaca, NY, http://wri.eas.cornell.edu 101 Pennsylvania Dept of Environ Protection, District Oil & Gas Operations, certified Letter of Determination 5-14-14, Springville, Susquehanna County, Complaint # 303704. 102 Community Science Institute email response to water testing Nov 2014 and communityscience.org “Baseline Testing: Documenting Pre-drilling Water Quality” and “Baseline Water Testing Frequent Questions” a state and nationally certified water quality testing lab creating a state-wide baseline database for water quality in NYS. 103 NYS Water Resources Institute, Dept of Earth and Atmospheric Sciences, Cornell University, Ithaca, NY “Private Water Well Testing in Areas Impacted by Marcellus Shale Gas Drilling” May 10, 2012, PDF available at: http:/ / region8water.colostate.edu/ PDFs/ Factsheet%20Corrnell%20baseline%20sampling%20in%20Marcellus %20drilling%20areas.pdf

77 Major Findings – Local Impacts previously free of the toxic chemicals used in the SGD/HVHF process. Water must be collected by a NYS Accredited Laboratory certified by the NY Dept of Health using chain of custody protocol, not the Homeowners, to be legally credible and defensible. Water Tests are minimally $570 and must include heavy metals and other contaminants used in SGD/HVHF as well as radioactive substances brought to the surface with the drill cuttings and the wastewater brine. 104

7.5.4.3. Ongoing Water Monitoring – A Hardship Expense for Property Owners

A reasonable schedule for ongoing water well testing can add $2300 -$7000 a year for each homeowner. Costs accumulate once SGD/HVHF begins. Homeowners should test their wells for the same contaminates at least quarterly during SGD/HVHF starting several months after the work begins. Adirondack Environmental Services, Inc, Steve Valle, Marketing Director per telephone call stated this should be conducted monthly, especially during active SGD/HVHF phases and that each test would average between $500 - $700 each.105 Since each well can have up to 18 workovers, the need to test would be cumulative, and a homeowner's well may be sited between different well sites with different SGD/HVHF schedules. To protect their family’s safety and prove whether their water supply is safe or damaged, each property owner would be spending $2280 annually for quarterly testing, or $6840 for monthly testing, at current test rates. When there is contamination, the cost to litigate claims is often added to the property owners financial burden. Both SGD companies and leasing landowners can be liable for water contamination. In PA there are many homes with large fresh water holding tanks in the yards because water contamination was proven and the home owners can no longer use their own water wells.

104 Community Science Institute email response to water testing Nov 2014 and communityscience.org “Baseline Testing: Documenting Pre-drilling Water Quality” and “Baseline Water Testing Frequent Questions” a state and nationally certified water quality testing lab creating a state-wide baseline database for water quality in NYS. 105 Adirondack Environmental Services, Inc, Steve Valle, Marketing Director per phone quote Oct 2014

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7.6 Agriculture

From the Westerlo Comprehensive Plan: ...to ensure that zoning in the Town of Westerlo:

• Maintains and enhances the rural character of the town • Protects and promotes agricultural operations and farmlands within the Town of Westerlo, pursuant to Albany County ‘ Right to Farm law’ • Preserve and maintain the character and beauty of the rural landscape of Westerlo”

7.6.1 Agriculture in Albany County

The Albany County Agricultural and Farmland Protection Board completed a Farmland Protection Plan in 2004, their mission:

‘To develop goals and strategies to support and enhance Albany County’s agricultural industry and agricultural resources”.

Within the plan there is listed many challenges faced by agriculture including an aging farm operator population, increasing development pressure and increasing property taxes. Although many challenges are out of our hands, as the younger generation considers farming as a career AEM can be a tool to gear their operation up for the future. A more environmentally conscience population will demand “clean farms”. Farmers can use AEM [Agricultural Environmental Management] to bring their farm to the local markets by setting an example.106

7.6.1.1. Status of Agriculture in Albany County: 2002 Census

According to the 2002 census conducted by NASS there are 484 active farms* in the County. 69,000 acres of land in farms with an average size farm ~ 143 acres. County farms contribute over $19.3 million to the local economy and hire a significant number of employees. The primary agricultural products sold in Albany County are nursery and greenhouse crops followed by cattle and calves for beef and milk and other dairy products. [See following table from census.] 106 Albany County Soil and Water Conservation District, NYS Agricultural Environmental Management (AEM) Strategies Plan

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7.6.1.2. Agricultural District #2 Map: includes Westerlo

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7.6.2 Potential Impacts of HVHF on Agriculture in Westerlo

Westerlo is comprised of 58.5 square miles. Much of this land is farmland, helping to define Westerlo’s rural nature. There are many active working farms in Westerlo. The nonworking agricultural lands still hold the potential for being farmed. Agriculture contributes $5.4 billion annually to the economy in New York State. It is also a significant contributor to the economy in our town of Westerlo. A healthy agricultural industry has far reaching effects for our state and our community from creating a reliable and local source of food production, to providing a vibrant economic boost, to helping to maintain the rural character of our town. Much of the land that would be exposed to HVHF is farmland. The potential for HVHF to disrupt the integrity of agricultural productivity must be addressed. Below are listed findings relating to the potential areas of incompatibility that exist between farming and HVHF.

7.6.2.1. Soil Contamination and Compaction

It has been shown that soil acidity increases in the areas surrounding gas pipelines. This soil acidity reduces the essential nutrients in the soil such as carbon, nitrogen and phosphorous. Without adequate quantities of these nutrients, crops cannot grow. When methane, which is the primary component of natural gas, leaks from gas pipelines, it changes the content of oxygen and beneficial bacteria in the soil.

This reduces the ability of plants to utilize nitrogen; create cellulose, which is a necessary component of plant growth; and limits the plant’s ability to maintain proper hydration 107. Thus, the combined effects of acidification of the soil and deoxygenation, byproducts of HVHF, make growing even the hardiest crops difficult.

Heavy truck traffic is another outcome associated with HVHF. One side effect of this heavy traffic is soil compaction. Once soil is compacted, it disrupts the entire nature of the soil, and

107 http://www.catskillmountainkeeper.org

82 Major Findings – Local Impacts growth is difficult. Chemical runoff from the roads left behind by trucks can also damage soils. As Franklin D. Roosevelt said, ”The nation that destroys its soil destroys itself.”

7.6.2.2. Health Effects

HVHF also releases heavy metals such as arsenic, barium, cadmium, chromium, lead and mercury into the soils. Humans and animals that eat the plants grown in proximity to these soils will be consuming these metals as the growing plants have been absorbing them. These heavy metals can accumulate in body tissues and have deleterious health effects.108

7.6.2.3. Water Contamination

Wastewater from HVHF can contain radioactivity levels over one thousand times the EPA’s recommended standard for drinking water. Wastewater that finds its way into streams, rivers and ground water without adequate radiation treatment can then enter plants and then animals and people and accumulate in our body.109

7.6.2.4. Livestock Damage

Forty percent of the chemicals used in the HVHF process are chemicals which disrupt the endocrine system110. One example pertinent to the agricultural arena is fertility. These chemicals can reduce the fertility rate in livestock and thus have significant consequences for farms whose livelihood depends on raising livestock.111 Numerous livestock and wildlife poisonings have occurred due to contaminated surface water secondary to improper handling of HVHF fluids. Animals are attracted to the HVHF fluids due to the saltiness, leading them to consume these fluids and then perish. University professor of

108 http://www.truth‐out.org 109 http://earthworksaction.org 110 http://www.medicinemissouri.edu 111 http://www.sciencedaily.com

83 Major Findings – Local Impacts molecular medicine, Robert Oswald, and veterinarian, Michelle Bamberger coauthored a study in 2012 where they interviewed animal owners in six states where HVHF was being done. They looked at 24 cases where animals were potentially affected by HVHF. The study was limited, however, due to the nondisclosure settlements some impacted owners had reached. In one instance where the owner could discuss the details, their herd of 140 cows was exposed to wastewater from HVHF. Seventy died and there was a high instance of stillborn and stunted calves from the surviving cows. In another case, 17 cows had been exposed to HVHF fluid. They all died within one hour of direct contact with this fluid. Necropsy analysis revealed toxins associated with HVHF in their bodies including petroleum hydrocarbons and Quaternary ammonium compounds112. Our animals are the canaries in the coalmine for us.

7.6.2.5. Water Usage

Millions of gallons of water are used for each gas well. This water usage reduces the amount of clean water available for drinking, irrigating, etc. This is because the water is combined with thousands of pounds of toxic chemicals and sand. Sixty to eighty percent of the water used in HVHF remains underground where it can potentially contaminate underground aquifers. The remaining 20‐40% of the water returns to the surface where it can also contaminate nearby water sources. In comparison, water used in farming remains part of the water cycle.113 Water used in HVHF puts a significant stress on our clean water sources.

7.6.2.6. Food Safety

Food produced by farms in close proximity to HVHF carries a significant risk of being contaminated. The Government Accountability Office admits that the National Residue Program does not monitor all known heavy metal and chemical residues present in meat and poultry for example. Although at least 596 chemicals are used in HVHF, companies are not required to disclose the chemicals within HVHF fluid. Therefore government regulatory organizations may

112 http://www.grist.org 113 http://www.earthworksaction.org

84 Major Findings – Local Impacts not even know what to test for.114

7.6.2.7. Summary

All of the above effects of HVHF pose potential risks for the farmer to operate successfully. Because profit margins in agriculture are small to begin with and farmers already face so many obstacles, HVHF imposes yet another risk. Each farm, through its support personnel, supply and equipment purchases, and production of food, contributes to the local economy. When the local farmer goes out of business, all of the businesses the farmer supports will also be affected. So too, will the local economy suffer. As Wendell Berry notes in The Jefferson Lecture in 2012, our nation’s highest honor for distinguished intellectual achievement: “There is in fact no distinction between the fate of the land and the fate of the people. When one is abused, the other suffers.”115

7.6.3 Impacts of SGD/HVHF Infrastructure on Agriculture

SGD/HVHF infrastructure expansion can also affect agriculture. Fragmentation of agricultural land that is disturbed and segmented by pipelines or other infrastructure can impact the usability and value of farmland. Both pipeline construction and maintenance have effects. For instance: Dr. Jeanne Simonelli, a Senior Research Associate at Wake Forest University, submitted a comment116 to FERC regarding their Draft Environmental Impact Statement (DEIS) for the Constitution Pipeline/IGC Wright Compressor Station proposal. Her comment addressed DEIS sections that relate, in part, to herbicides, karst topography and organic farms. The following is excerpted from Dr. Simonelli's comments: “According to the DEIS:

To minimize the potential spread of invasive species, Constitution has developed state-specific Invasive Species Management Plans in consultation with the applicable state regulatory agencies (the PADCNR, the NYSDEC, and the NYSDAM). The Management Plans contain measures designed to control invasive plant species during project construction and operation through limited use of herbicides, installation of wash stations to clean vehicles that have traversed infested areas, and rapid restoration and reseeding following installation of the pipeline, which would promote the 114 http://www.foodsafetynews.com 115 Berry, Wendell, It All Turns on Affection, 2010 116 FERC comment on DEIS for proposed Constitution Pipeline & Iroquois Gas Company Wright Compressor Station, Docket Nos. CP13-499 and CP13-502; NAN-2012-00449-UBR, March 25, 2014

85 Major Findings – Local Impacts establishment of desirable plant species and deter the spread of unwanted plant species. Constitution would also conduct yearly monitoring and apply herbicide, as needed.

The use of herbicides to control vegetation has several potential impacts, two of which include migration of chemicals through karst topography and impact on organic farming. Because this is not my area of expertise, I consulted with a colleague, Dr. Brian Campbell, whose ethnographic research focuses on the issue of utility easements and herbicide use in a region of karst topography in Arkansas, and is the subject of a recent documentary film.

While herbicides are used as part of integrated management plans to control invasive vegetation along utility easements and pipelines, there is no research on what herbicides do to naturally occurring plant communities and little research concerning residual impacts. Herbicides are endocrine disrupters and though the EPA registers herbicides, it doesn’t mean they are safe… even if label directions are followed.

This is particularly critical in the case of the increasing numbers of organic food producers in the region. According to the DEIS, “Constitution would limit potential impacts on organic farms, through implementation of its Organic Farm Protection Plan;… we recommend that: Constitution should revise its Organic Farm Protection Plan to include the required use of organic straw/hay for mulch in certified organic agricultural land.” ...

The DEIS states that the owners of agricultural land would be compensated for any measurable loss of agricultural or livestock production in accordance with the terms of landowner agreements. Impacts on agricultural lands would be short-term and offset by compensation agreed to during easement negotiations.

Organic farms or gardens that lose certification through contamination must wait three years to be recertified. Because of run-off, wind, and other means of spread, not only are farms along the pipeline route at risk, but those nearby as well. Moreover, studies have determined that the foraging range of honey bees is 12.5 km. This means that potential contamination of natural or organic honey production is threatened far beyond the spray range of the easements. Finally, as the DEIS attests, some of the affected farmers have refused to acquiesce to Constitution’s requests to survey. What about compensation for loss of livelihood on lands taken through eminent domain?

FERC should direct Constitution to:

• Determine the location of all organic properties contiguous to the 124 mile pipeline route.

• Provide a plan for compensation for all organic farms who lose certification or experience reduced sales due to the presence of the pipeline on or near their properties.

• Provide a legal mechanism by which any farm, kitchen garden, or property can be placed on a “do not spray” list and a plan by which this would be communicated to subcontractors.

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7.7 Property

SGD/HVHF, including infrastructure expansion, has potential impacts on the value, control and insurability of property. These impacts might affect property owners in complex and unforeseen ways even if they have not agreed to sell or lease their mineral rights.

7.7.1 Forced Pooling: “Compulsory Integration”: A Form of Eminent Domain

NYSDEC regulations regarding SGD/HVHF are in the process of being revised. The current regulation describes a well spacing unit as up to 640 acres (one square mile). If 60% (384 acres) of that acreage is leased, owners of the remaining 40% (256 acres) can be forced to “participate” in a HVHF operation through the provision of “Compulsory Integration”.

I f one person owned 60 percent of the well-unit acreage and 35 others owned the rest, that single vote would decide .117

The NYSDEC Landowner Option Guide118 answers the question:

“What happens if I don't lease my oil and gas rights, but my acreage is assigned to a well?

Here's what that NYSDEC Guide says:

“...an applicant for a permit to drill an oil or gas well in New York State must include, ...a map showing the area that will be assigned to the well. This area, called a spacing unit, may include some or all of your acreage even if you haven't signed an oil and gas lease.

After the [NYSDEC] issues a well permit, you will be required to elect an option for how your unleased acreage in the spacing unit will be integrated with other properties in the unit.”

117 Leefeldt, E., Homeowners: How do mineral rights and fracking affect you?, March 2014 118 http://www.dec.ny.gov/energy/1590.html

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The Guide goes on to describe landowner “options”. They're all options to “integrate”: “If your acreage remains unleased but it is in a spacing unit, you must choose one of the following: Integration as a royalty owner, Integration as a non-participating owner, Integration as a participating owner.”

There is no option to decline. The Guide also describes “Responsibilities of Integrated Participating and Non-participating Owners” . Some of the responsibilities for landowners forced into a drilling unit include:

• Liability for your share of actual well costs

• Liability for your share of completion and operating costs for the life of the well

• Liability for your share of gathering line costs

• Liability for your share of subsequent operations costs

• Liability for your share of taxes and third-party claims related to drilling and operation

7.7.2 Split Estate and Mineral Rights

A split estate happens when a person owns the surface of a piece of land, but not the resources underneath—oil and gas, for example.

When we acquire property we may not completely understand what we actually own and control. Residential title searches do not normally research oil & gas leases and title insurance does not normally defend title to land with SGD leases or compensate for losses resulting from them. Mineral rights that are sold or leased by one owner do not become the property of subsequent owners.

“Are the mineral rights yours to sell?

“Critics and supporters agree that state rules on fracking vary and there's no national standard. The federal government generally has a hands-off policy. The sole exception is a tentative move by the U.S. Department of Agriculture to require an environmental review prior to issuing mortgages under its Rural Housing Service program to those who have leased their land to drillers.

Another legal wrinkle: The developer may have kept or sold your mineral rights: For example,

88 Major Findings – Local Impacts homeowners in Naples, Fla., found out that the mineral rights under their property were already sold. "Homebuilders and developers have been increasingly - and quietly - hanging onto the mineral rights," according to a Reuters report, even in urban areas.

A title search [may] reveal whether the buyer also owns the underground rights, but it would have to go back 100 years, warns real estate attorney Elizabeth Radow of Radow Law in Larchmont, N.Y. One couple found a driller outside their window because of a lease signed in 1918”.119

7.7.3 Property Values

“Property values traditionally go down in areas where there is fracking. In many parts of Texas, real estate appraisers have severely discounted valuations (driving prices down by as much as 75%) if a property has a gas well. New construction, one of the bases of economic recovery, won’t start where there is residential fracking because construction loans require a property to be free of the risks that gas drilling brings”120

“...close to one million US citizens have already been affected by fracking, and as always, we can learn from history. So far, it’s taught us that fracking can lead to homeowners suffering major losses, both in property damage, property value, and perhaps most frightening, becoming liable for any negative results that occur from fracking on a homeowner’s property. The list of losses and risks associated with fracking continues growing, and unfortunately, still isn’t complete since it’s still a relatively new trend. That also means most insurance policies – and the law — don’t offer coverage that’s evolved to keep up with this increasingly common trend, so whether or not a homeowner is covered by homeowners insurance for related losses and liability claims against a homeowner- is a huge question.121

and

“The large equipment used to drill and hydraulically fracture a well can also be noisy and visually unattractive, especially when in close proximity to occupied residences. Furthermore, this activity can have a negative impact upon local property values, especially in residential areas, owing to a combination of real and perceived risks and impacts.”122

119 Leefeldt, E., Homeowners: How do mineral rights and fracking affect you?, March 2014 120 Fracking and Mortgage Problems, March 2013,http://www.catskillmountainkeeper.org/our-programs/fracking/ 121 Baughman, D, Fracking: Friend or Foe For Homeowners?, http//www.insurancequotes.org/business-insurance/ 122 Clark, C. et al, “Hydraulic Fracturing and Shale Gas Production: Technology, Impacts and Regulations”, 2013, Agronne National Laboratory, U.S. Department of Energy, U of Chicago, Chicago, IL

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7.7.4 Mortgages, Title and Homeowner's Insurance

Most home mortgage loans prohibit the types of heavy industrial activity and hazardous materials that come with SGD/HVHF.

The Tompkins County (NY) Council of Governments (TCCOG) Task Force on Gas Drilling convened their Assessment and Land Valuation Committee123 to assist the County and its towns and municipalities “to explore the effects of [SGD/HVHF] on land value, property assessment, the tax base, and financing...and related issues including … splitting of subsurface rights and compulsory integration.”

Gregory May, VP of residential mortgage lending at Tompkins Trust Company, is principal author of a White Paper report124 prepared for TCCOG. That report was supported by collaborators that included realtors, appraisers, real estate attorneys and lenders. The report summarizes eleven main points related to impacts of HVHF on mortgages, title insurance and traditional (fire) homeowner's insurance:

NOTICE

The information in this presentation relates to the impact of gas and/or oil leases on residential mortgage lending. Consult with a Real Estate Attorney to address specific issues as they relate to a specific property or lease.

No opinion is being expressed or implied on the practice of leasing mineral rights, environmental impact or regulations surrounding gas and/or oil leases (referred to as gas leases or leases hereafter) by the members or presenters of these findings. The issues listed are summarized to highlight potential conflicts for residential mortgage lending in an effort to facilitate consideration of these issues.

Any use of this document or summary points must include the above notice

1) Surface or sub surface rights within 200 feet of a residential structure would not be acceptable for conventional financing in the secondary market per Fannie Mae and Freddie Mac requirements published in their manuals. (Freddie Mac manual section 39.4, various subsections)

123 TCCOG/Gas_Drilling/Focus_Groups/LandValues_Assessment.html, http://www.tompkins-co.org/ 124 May, Gregory, Gas and Oil Leases as they relate to Residential Lending, November 15, 2011

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2) Title insurance has become a requirement for the vast majority of residential mortgages. If standard title insurance is relied upon to secure traditional mortgage financing for a property with a gas lease, the coverage is ineffective to protect against activities authorized and commonly undertaken pursuant to a gas lease.

3) There is not a cost effective or reliable way to determine if a residential property has a gas lease to allow an Appraiser to establish an appraised value based on comparable sales of similar properties. To determine if a property (a comparable) has a gas lease, a title examination of each property would be necessary and add significant cost to each transaction.

4) Since there is limited historical data on sales of properties with leases, NYS licensed Appraisers are not able to determine or consider the impact on value or marketability if a gas lease exists as noted in item #3 above. Since the impact on value and marketability can not be determined, the Appraisal would not meet traditional secondary market requirements or commonly accepted lender requirements.

5) Section 18 of the standard Fannie Mae/Freddie Mac Mortgage prohibits transfer or sale of any portion of, or rights in, a mortgaged property without prior written consent of the lender and/or Fannie Mae/Freddie Mac. Grant of a gas lease is the transfer of rights in the mortgaged property. This mortgage security document is the commonly accepted and used document for lenders.

6) Section 21 of the standard Fannie Mae/Freddie Mac Mortgage prohibits environmental hazardous substances, specifically naming gas, from being stored, used, disposed of, discharged or released on the mortgaged property. The borrower also agrees to not allow another entity to do any of these prohibited actions on the mortgaged property. This mortgage security document is the commonly accepted and used document for lenders.

7) Traditional home owners insurance (fire insurance) generally would exclude coverage if a property has active commercial operations occurring on the property. In addition, some companies are now adding “pollution exclusion” language that would not cover seepage or leakage damage coverage as a result of commercial activities.

8) Surface or sub surface rights within 300 feet of a residential structure OR within 300 feet of property boundary lines would not be acceptable for FHA (Department of HUD) financing. HUD Minimum Property Standards, section 4150.2.

9) Standard gas leases provide the gas company with permanent easements on the property to drill, maintain, operate, plug, use roads, electric, construct pipelines…etc. Such rights survive the term of the lease and would impact the ability for potential future owners to secure traditional financing for the reasons noted above.

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10) Gas leases are, at times, pledged by the holder of the lease, to secure financing for the company with a lien being placed on the property’s sub-surface rights. These liens may impact the ability for a homeowner to sell or use the property as security for traditional financing since many municipalities and title companies are not able to separate surface and sub-surface ownership and liens in an effective way. A standard title search that shows such liens would create confusion or delay in distinguishing between the homeowners and gas companies rights in the property. 11) Lenders are responsible to warrant that loans they sell in the secondary mortgage market meet investor requirements. If a lease exists on a property, it would be difficult for a lender to warrant the loan meets all investor requirements.

May's findings are corroborated by Daryl Anderson, in a letter to the Hector, NY town board125, where he references the policy of Visions Federal Credit Union (offices in Binghamton, Endwell, NY; and Montrose, Sayre, Wysox, PA):

Visions Federal Credit Union Policy Regarding Oil and Gas Leases: 1. If there is an oil and gas lease on your property, Visions Federal Credit Union will not give you a mortgage loan secured by your property. 2. If someone other than you has the oil, gas, or mineral rights to your property, then Visions Federal Credit Union will not give you a mortgage loan secured by your property. 3. If you presently have a mortgage with Visions Federal Credit Union and you subsequently enter into an oil or gas lease after September 14, 2009, then Visions Federal Credit Union may require you to pay the balance of the loan in full pursuant to the terms of your existing note and mortgage. Please note that Visions Federal Credit Union will not sign a subordination agreement or other consent to lease with and oil and gas company.”

The Catskill Mountainkeeper reports on a Quicken Loans case:

“Take the case of Brian Smith of Daisytown, PA who in May 2012 was unable to refinance his home and was told by his lender, “While Quicken Loans makes every effort to help its clients reach their home ownership goals, like every lender, we are ultimately bound by very specific underwriting guidelines. In some cases conditions exist, such as gas wells and other structures in nearby lots that can significantly degrade a property’s value. In these cases, we are unable to extend financing due to the unknown future marketability of the property.”126

125 Anderson, Daryl, Hector Clean Waters, Impacts of Hydraulic Fracturing on Home Sales and Property Values 126 Fracking and Mortgage Problems, March 2013,http://www.catskillmountainkeeper.org/our-programs/fracking/

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7.7.5 Liability Insurance

Homeowner's insurance does not cover heavy industrial activities. Policies are likely to exclude coverage, for instance, for damages from SGD/HVHF induced earthquakes or environmental contamination:

“The key to owning real estate in any market is being able to insure your home or property, since without it banks will not provide a mortgage.

Insurers are becoming more cautious about fracking as it becomes more widespread. Spokesman Brad Hilliard of State Farm, the nation's largest home insurer, says his company asks clients in advance about business activities on properties it insures, and requires additional information if hydraulic fracturing is involved. "Damage from earth movement, including earthquakes, whether caused by fracking or something else, is an excluded loss under State Farm's basic homeowner's policy," he says.

Nationwide Insurance garnered national publicity when it said it would refuse to cover risks associated with fracking. But Robert Hartwig, president of the Insurance Information Institute (III), which represents property insurers, says that's the position of the whole industry. Water pollution and other perils associated with fracking simply aren't in the policy.

"If there is a problem," says Hartwig, "get a good attorney and sue the driller."”127

Umbrella policies extend liability coverage for homeowners, but can still leave individuals unable to meet financial penalties for problems they don't control. Getting a good attorney to “sue the driller” is beyond the ability of many landowners, and the O&G subcontractors are often beyond the reach of litigation: “...many drilling companies lease ‘mineral rights’ from the owner, but the ‘lessor’ is rarely told about the risks, dangers, and possible liability they’ll assume once the fracking operation is done with or when the mineral rights lease is over. The technicality legally is that these leases typically just pertain to the area below ground, meaning no matter what, or when, the fracking company could still be indemnified because they’re working underneath the owner’s property. That means the property owner could face liability because they own the ‘subsurface’ – the land they’re responsible for. This is especially true if a lease was in place by a company like an LLC or LLP that’s dissolved once the fracking company got what they needed, meaning the homeowner then has nobody to legally point the finger out and hold liable.”128

127 Leefeldt, E., Homeowners: How do mineral rights and fracking affect you?, March 2014 128 Baughman, D, Fracking: Friend or Foe For Homeowners?, http//www.insurancequotes.org/business-insurance/

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7.8 Roads and Trucking

Road damage from SGD/HVHF activities is often significant. Westerlo's local roads are not designed to support the weight and frequency of the heavy industrial transport required for SGD/HVHF. Road use agreements are often ineffective. Many SGD operators are LLC contractors who have little incentive to restore roads and repair damage . Many municipalities don't have the legal or financial resources to effectively litigate enforcement of road use agreements and the cost for repair is eventually paid for by local taxpayers.

From Clark, et al, at the US Department of Energy (USDOE) Argonne National Laboratory:

“... some aspects of shale gas development differ from those of other industrial processes. Intense trucking near well pads often occurs over a brief period on rural roads. This traffic is heavy enough to cause significant road degradation, but unlike a road to a stationary industrial facility that will support traffic over a long period of time, these roads are subject to heavy traffic for only a brief period, making road upgrades a difficult decision for local or state governments. ...The process requires heavy equipment, including hundreds to thousands of truck trips to deliver water and chemicals to perform the hydraulic fracturing process, and many more to remove the flowback water generated by the process. This intense traffic places enormous stress on local roads, which may not have been built to handle heavy truck traffic, and can lead to congestion, which can become a source of frustration for local citizens. The large equipment used to drill and hydraulically fracture a well can also be noisy and visually unattractive, especially when in close proximity to occupied residences. A [HVHF] well requires a prepared area on the surface, called a pad, that provides a stable base for a drilling rig, retention ponds, water storage tanks, loading areas for water trucks, associated piping, and pumping and control trucks. After well completion, the pad serves as the location of the wellhead and other equipment. Preparing a pad involves clearing and leveling several acres of land. Its size depends on the depth of the well and the number of wells to be drilled on the site. In addition to land disturbed for building the well pad, three to four acres are disturbed per pad for roads and utilities to service the pad. ...Multiple horizontal wells accessing different parts of the shale formation can be drilled from a single pad.129 “

129 Clark, C. et al, “Hydraulic Fracturing and Shale Gas Production: Technology, Impacts and Regulations”, 2013, Agronne National Laboratory, U.S. Department of Energy, U of Chicago, Chicago, IL

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7.8.1 NYSDEC Estimates of Truck Trips per Wellbore

NYDEC DSGEIS130 NTC Consultants (NTC) estimated required truck trips per well for the noted phases requiring transportation as follows:

Drilling Rig Mobilization, Site Preparation and Demobilization

• Drill Pad and Road Construction Equipment 10 – 45 Truckloads • Drilling Rig 30 Truckloads • Drilling Fluid and Materials 25 – 50 Truckloads • Drilling Equipment (casing, drill pipe, etc.) 25 – 50 Truckloads • Completion Rig Mobilization and Demobilization • Completion Rig 15 Truckloads

Well Completion

◦ Completion Fluid and Materials 10 - 20 Truckloads ◦ Completion Equipment (pipe, wellhead) 5 Truckloads ◦ Hydraulic Fracture Equipment (pump trucks, tanks) 150 -200 Truckloads ◦ Hydraulic Fracture Water 400 - 600 Tanker Trucks ◦ Hydraulic Fracture Sand 20 - 25 Trucks ◦ Flow Back Water Removal 200 - 300 Truckloads ◦ Well Production ◦ Production Equipment 5 – 10 Truckloads

7.8.2 Estimates of Loads and Truck Trips from Other Sources:

Gallons of Fresh Water Per Wellbore

• 2.3 - 5.5 million gallons of water are required to hydraulically fracture a [single] well[bore]131 [Note: some estimates are 2-20 million132]

• Water in amounts of 190,000 – 310,000 gallons is also used to drill and cement a shale gas well during construction133

• Most wellbores require more than one drilling event or workover(s) to maximize gas flow.

130 http://www.dec.ny.gov/energy/58440.html 131 Clark, C., Han, J., Burnham, A., Dunn, J., and Wang, M., 2011, Life-Cycle Analysis of Shale Gas and Natural Gas, ANL/ESD/11-11, Argonne National Laboratory, Argonne, IL. 132 ChenangoDelawareOtsegoGasGroup, http://www.un-naturalgas.org/ 133 Clark, C., Han, J., Burnham, A., Dunn, J., and Wang, M., 2011, Life-Cycle Analysis of Shale Gas and Natural Gas, ANL/ESD/11-11, Argonne National Laboratory, Argonne, IL.

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Truck Trips Per Single Wellbore Hydraulic Fracturing

• 320 truck trips for a single 2 million gallon wellbore134

◦ For a single horizontal well fracturing, requiring 5 million gallons of fresh water,

▪ expect 100 large freshwater-hauler loads of driving to the well during fracture.

▪ Then, another 700 smaller waste-hauler truckloads to transport the toxic waste away to a disposal facility.

▪ That's 800 trucks with a gross weight of up to 40 tons.

▪ 800 trucks divided by 5 million gallons = 160 truckloads per million gallons

▪ [Multiplied by]* 100 divided by 5= 20 large freshwater hauling trucks per million gallons fresh water used.

▪ [Multiplied by]*700 divided by 5= 140 smaller toxic waste hauling trucks per million gallons of fresh water used.135

▪ Multiple Horizontal Wellbores per Well Pad: 2 to 20

• Up to 6 wellbores per pad using old conventional rigs; 10 to 20 wellbores per pad using new HP rigs136

Workovers (additional hydraulic fracturing) Required Over 30 year Well Life: 1-6

• The Earthworks PDF referenced above states that Halliburton says: “It is important to note that a well drilled in the Marcellus shale may have to be fracked several times over the course of its life to keep the gas flowing, and that each fracking operation may require more water than the previous one.”137 ◦ "Estimates vary on how many times a gas wells must be fractured again to keep the gas flowing—from zero to once every several years over the 20- to 30-year life of the gas well." ◦ So, for "several years" let's assume 5 year intervals, when multiple frackings are required. ◦ For a well not requiring later fracking (“restimulation”): 1 fracking ◦ Possible frackings for wells requiring restimulation: 30 years divided by 5= 6 frackings138

134 ChenangoDelawareOtsegoGasGroup, http://www.un-naturalgas.org/ 135 S ummary of Texas info supplied by Earthworks, http://www.earthworksaction.org/publications.cfm?pubID=354 as referenced by ChenangoDelawareOtsegoGasGroup, http://www.un-naturalgas.org/ 136 http://cogcc.state.co.us/Library/Presentations/NWForum20080904/WilNWForum608.ppt 137 http://www.texaswatermatters.org/pdfs/news_363.pdf 138 ChenangoDelawareOtsegoGasGroup, http://www.un-naturalgas.org/

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Trucking Summary: 139

Halliburton advises that more water (and we should assume more "produced water" or toxic waste) is required for each successive fracking, but does not provide any estimate of how much more water would be required. The following estimates conservatively assume that fresh water used and toxic waste produced remains the same for each successive fracking [workover]:

Minimum Trucking (Minimum 1 well on a pad, with only 1 fracking over 30 years) 2 to 9 million gallons of fresh water used per pad 40 to 180 large fresh-water tanker trucks hauling fresh water. (2 to 9 loads per day for 21 days of fracking). 280 to 1,260 smaller waste-materials tanker trucks hauling toxic wastes. (14 to 53 days of toxic waste hauling at 20 truckloads per day of removal.) Overall:320 to1,440 possible tanker truck trips over wellpad life. Maximum Trucking Maximum 20 wells on 1 pad, with 6 frackings over 30 years. 240 million to 1.08 billion gallons of fresh water used per pad. 4,800 to 21,600 large fresh-water tanker trucks hauling fresh water. (2 to 9 loads per day for 2,520 days of fracking) 33,600 to 151,200 smaller waste-materials tanker trucks hauling toxic waste. (1680 to 7560 days of toxic waste hauling at 20 truckloads per day of removal) Overall: 38,400 to 172,800 possible tanker truck trips over well pad life.

Additional Trucking Required for Chemicals and Proppants:

• One HVHF wellbore uses up to 925,000 pounds [for a 5..6 million gallon fracture]140 of chemicals, some known to be toxic or carcinogenic

• One HVHF wellbore uses many tons of sand or other proppants. Sand mine trucking accounted for 15% of heavy commercial vehicle traffic on a Minnesota bridge. 141

139 Adapted from: ChenangoDelawareOtsegoGasGroup, http://www.un-naturalgas.org/ 140 The [NYSDEC} SGEIS [also] states that chemical additives typically comprise 2% or less of the fracturing fluid (Section 5.4, p. 5–33). 2% by weight of 5.6 million gallons is 935,000 lbs. Averaging these two weights yields 570,000 lbs. per well, or 4 million pounds for 7 wells. Referenced in: http://stopfyldefracking.org.uk/latest- news/how-does-high-volume-slick-water-hydraulic-fracturing-of-shale-differ-from-traditional-hydraulic- fracturing/ 141 Minnesota Department of Transportation,, http://www.dot.state.mn.us/frac/ (Fall 2012 measurement)

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7.8.3 Other Transportation Impacts: Crystalline Silica Dust

Crystalline silica dust can be generated in the transportation of sand proppant to HVHF well sites, and by the process of moving and mixing sand into the hydraulic fracturing fluid at the well pad.142

“Crystalline silica dust within the respirable size range (<4 microns) is considered a [Hazardous Air Pollutant] HAP and a carcinogen. In addition to an increased risk of lung cancer, exposure to crystalline silica can lead to a chronic, inflammatory lung disease called silicosis (Wisconsin Department of Natural Resources 2011). A recent field study of 11 different hydraulic fracturing sites in five different states by researchers at the National Institute for Occupational Safety and Health (NIOSH) found levels of crystalline silica that exceeded NIOSH recommended exposure limits (REL) in 79% of the samples and far exceeded the REL by a factor of 10 or more in 31% of the samples. The researchers concluded that existing safeguards may not be sufficiently protective of worker health and that additional safeguards should be put in place (Esswein et al. 2012)”143.

142 Clark, C. et al, “Hydraulic Fracturing and Shale Gas Production: Technology, Impacts and Regulations”, 2013, Agronne National Laboratory, U.S. Department of Energy, U of Chicago, Chicago, IL 143 Clark, C. et al, “Hydraulic Fracturing and Shale Gas Production: Technology, Impacts and Regulations”, 2013, Agronne National Laboratory, U.S. Department of Energy, U of Chicago, Chicago, IL , and, Esswein, E., Kiefer, M., Snawder, J., and Breitenstein, M., 2012, “Worker Exposure to Crystalline Silica During Hydraulic Fracturing”, http://blogs.cdc.gov/niosh-scienceblog/ 2012/05/silica-fracking/, accessed June 5, 2012.

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7.9 Waste Management

Even if SGD/HVHF is banned in NYS, Westerlo could still be impacted by its hazardous waste.

7.9.1 HVHF Waste Disposal Methods

SGD/HVHF production generates industrial waste that includes:

◦ LIQUIDS: drilling fluid (water, proppants and chemicals), “produced water” also called “flowback water”144 and “brine”

◦ SOLIDS: drill cuttings (residual pulverized slurry of rock fragments and other material from the original well-bore excavation, sometimes called “sludge”), and flowback sand (proppant extracted from flowback water).

Disposal methods include:

Type of Waste Method Liquids Open evaporation lagoons Class II Underground Injection waste wells Water treatment plants Surface discharge (accidental or intended) Road Spreading Solid Drill Cuttings Landfills Specialized HAZMAT waste treatment facilities

144 Clark, C. et al, “Hydraulic Fracturing and Shale Gas Production: Technology, Impacts and Regulations”, 2013, Agronne National Laboratory, U.S. Department of Energy, U of Chicago, Chicago, IL

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7.9.1.1. Road Spreading in NY

The Marcellus Shale is highly salty. This saltiness is concentrated in flowback water can be many times the level permitted for drinking water and is also 3-10 times saltier145 than ocean water.

One of the methods used to dispose of SGD/HVHF waste fluids is as a winter treatment for roads. Discharge of this waste water requires a NYDDEC Beneficial Use Determination (BUD).

“...documents indicated that road spreading of oil and natural gas production brine has been approved in portions of at least 29 municipalities in 7 western New York counties: Wyoming, Erie, Cattaraugus, Chautauqua, Genessee, Niagrara and Seneca. Road spreading of brine from natural gas storage has been approved in at least 12 municipalities in 2 western New York counties: Allegany and Steuben. In addition, the New York State Department of Transportation (NYSDOT) Region 6 received approval to spread what appears to be brine from natural gas storage on state roads in portions of Steuben, Allegany, Chemung, Schuyler, and Yates Counties, while NYSDOT Region 4 received approval to spread natural gas production brine on state roads in portions of Genessee, Wyoming, Orleans, Monroe, and Livingston Counties. In total, since mid-2011 road spreading of oil and natural gas production brine and natural gas storage brine has been approved for use in portions of at least 41 municipalities in 9 New York counties, and for NYSDOT use on state roads in portions of at least 10 counties. Riverkeeper also received testing information that was submitted with requests for the BUDs. A review of these brine testing results from both natural gas production brine and brine from natural gas storage facilities showed extremely high levels of chloride. Chloride can corrode infrastructure and negatively affect aquatic life and vegetation. In addition, results submitted with requests for BUDs for oil production brine and brine from natural gas storage facilities revealed the presence of benzene and toluene. Benzene is a carcinogen that has been linked to blood disorders such as anemia, while toluene has been linked to nervous system, kidney, and liver problems. The testing results we received did not include testing for NORMs. Many of the BUDs included the condition that “[b]rine from Marcellus formation wells may not be used without additional analysis,” although what additional analysis was required was not specified.146

Note: Brine spreading is not allowed on Albany County's county roads. (See page 38.)

145 Hammer, R, and Van Briesen, J, NRDC Document, In Fracking’s Wake: New Rules are Needed to Protect Our Health and Environment from Contaminated Wastewater, D:12-05-A, May 2012 146 The Facts about New York and Fracking Waste | Riverkeeper http://www.riverkeeper.org/campaigns/safeguard/gas-drilling/the-facts-about-

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7.9.1.2. SGD/HVHF Waste Treatment Options

NYSDEC has not classified HVHF wastes as hazardous material even though they may contain radioactive material that exceed EPA limits, toxic chemicals and highly concentrated salts. NYS currently allows NY waste management facilities to accept HVHF wastes from other states.

Liquid Waste: Treatment design begins with evaluation of the constituents to remove and assessment of methods to remove those targets. The major constituents of concern in produced water from natural gas development are 1. salt content, including metals, 2. organic hydrocarbons (sometimes referred to as “oil and grease”), 3. inorganic and organic additives, and 4. naturally occurring radioactive material (NORM).147

“...Both types of wastewater—flowback and production phase water—contain potentially harmful constituents. These constituents can be broadly grouped into several principal categories: salts (often expressed as total dissolved solids, or TDS), organic hydrocarbons (sometimes referred to as “oil and grease”), metals, chemical additives (from the fracturing fluid), and naturally occurring radioactive material (NORM). Because of these constituents, shale gas wastewater must be carefully managed to prevent harm to human health and the environment. If wastewater is accidentally spilled onto nearby lands or into local waters, or if it is intentionally released into the environment without adequate treatment, exposure to the pollutants it contains can be dangerous to people and ecosystems.”

….Discharge of waters at the salinity of produced waters from the Marcellus formation would require either treatment to reduce salinity or dilution with pure water to 100 to 500 times their volume to reach drinking water levels.”148

Liquid waste is “virtually impossible to remediate through traditional wastewater treatment plants”149

Solid Waste: Solid wastes from SGD/HVHF are steeped in HVHF wastewater. Drilling in the Marcellus Shale concentrates Naturally Occurring Radioactive Material (NORMs) as Technically Enhanced NORMs (TENORMs) and the drill cuttings may have very high levels of NORMs.

147 Hammer, R, and Van Briesen, J, NRDC Document, In Fracking’s Wake: New Rules are Needed to Protect Our Health and Environment from Contaminated Wastewater, D:12-05-A, May 2012 148 Hammer, R, and Van Briesen, J, NRDC Document, In Fracking’s Wake: New Rules are Needed to Protect Our Health and Environment from Contaminated Wastewater, D:12-05-A, May 2012 149 Downs, Roger, Testimony, Forum on the Public Health and Environmental Risk Posed by Hydraulic Fracturing By-Products and the Acceptance Thereof by NYS Publicly Owned Treatment Works and Landfills, May 13, 2014

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Some solid waste from PA and other states with SGD/HVHF is disposed of in landfills or in specialized HAZMAT treatment facilities, but these facilities are reviewing their policies: A Michigan hazardous-waste landfill operator, who had previously accepted radioactive waste from PA, announced in August 2014 that it will suspend receipt of all such materials from all oil and gas operations pending a review by the state.150 Michigan's governor announced plans to form a panel of experts to look at the state's standards for disposing of radioactive wastes. The announcements follow an Aug. 19 Free Press report on plans by a Pennsylvania oil and gas development company, Range Resources, to ship radioactive fracking waste to Wayne Disposal [in MI]. The sludge was rejected by landfills in western Pennsylvania and its shipment to a landfill in West Virginia was halted by the state and voluntarily discontinued by the company, as West Virginia reforms its laws for handling such waste

7.9.2 SGD/HVHF Waste from PA in NY

Pennsylvania (PA) exports HVHF waste (e.g. 460,000 tons, and 23,000 barrels since 2010151) to NY landfills. PA does not allow disposal of radioactive wastes that exceed EPA permissible levels in its own facilities and requires its local landfills to have radiation monitors to prevent illegal dumping. NY landfills don't have these monitors. Unless NYSDEC revises it's definition of hazardous wastes based on the NYSDOH report, it is likely that imports of HVHF hazardous waste will continue. It may be unlikely, but still possible, that HVHF hazardous wastes could be deposited in Westerlo's transfer station, or that Westerlo would be considered as a location for a new solid and/or liquid hazardous waste facility. Management of HVHF waste is challenging because of its toxic composition and volume. In May 2014, Roger Downs, Conservation Director of the Atlantic Chapter of the Sierra Club, gave testimony152 before NYS Legislature Democratic Conference. Mr. Downs testified about the SGD/HVHF waste entering NYS in spite of the State's defacto

150 The Detroit Free Press, Michigan landfill operator suspends receipt of low-level radioactive waste, August 2014, http://archive.freep.com/article/20140825/NEWS06/308250180/Michigan 151 http://www.lohud.com/story/news/polics/albany‐watch/2015/02/05/report‐ny‐landfills‐accept‐tons‐pa‐ drillingwaste/22953545/ 152 Downs, Roger, Testimony, Forum on the Public Health and Environmental Risk Posed by Hydraulic Fracturing By-Products and the Acceptance Thereof by NYS Publicly Owned Treatment Works and Landfills, May 13, 2014

102 Major Findings – Local Impacts ban because of loopholes in the State Environmental Conservation Law. Some of his points:

• HVHF fluid additive chemicals often arrive at a well pad as regulated hazardous materials (HAZMATs), complete with transport manifests and added safety features, but federal and state exemptions allow HVHF operators that pump these chemicals into the ground and then to treat the waste that comes back up as standard industrial waste.

• Carcinogenic benzene, toluene and formaldehyde are common ingredients in HVHF fluid and the returning drill cuttings and flowback fluid also bring up concentrated naturally occurring salts, heavy metals, and radioactive particles.

• HVHF wastewater that enters local sewage treatment plants, sometimes with radiation levels hundreds of times the allowable limit for effluent discharge, goes right back into public drinking water supplies.

• Drill cuttings can have high levels of Radium-226 and Radium-228, that can disperse as airborne particles or become soluble in water.

• NYSDEC has consistently ruled that

◦ Even though HVHF wastewater can be more than 3,000 times the allowable radiation limit for drinking water, that

◦ Drill cuttings steeped in this wastewater still qualifies as (unregulated) Naturally Occurring Radioactive Material (NORMs), and that

◦ Neither liquid nor solid HVHF waste is subject to further NYS regulation.

7.9.2.1. NY Facilities that Accept PA HVHF Waste

Every six months, the PADEP provides a report153 list of HVHF waste. The reports include a list of the well, producer and the and quantity of drill cuttings, flowback water, fracturing sand, drilling fluid waste, and “other” waste. A summary for the first half of 2014:

153 https://www.paoilandgasreporting.state.pa.us/publicreports/Modules/Waste/WasteHome.aspx

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Drill Cuttings: 41,450.3 Tons or 82,900,600 lbs Flowback Fracturing Sand: 665.42 Tons or 1,330,840 lbs Drilling Fluid Waste: 1,013.37 Bbl or 42,561.54 gal General O&G Waste not covered by other waste types: 12.06 Tons or 24,120 lbs

NY Facilities Accepting PA HVHF Waste During the First Half of 2014:

Chemung County Landfill - Lowman, NY Environmental Products & Services of Vermont – Syracuse, NY Hakes C&D Landfill – Painted Post, NY

The following list is adapted from the Downs testimony letter154:

NY Landfills and Treatment Facilities that Accept Drilling Waste From PA

Waste Facility Location Time Period Waste Type Waste Quantity Allegany Road Spreading Bolivar JanDec 2011 Produced Fluid 2,602 Bbl JanDec 2013 Produced Fluid 338.74 Bbl Allegany Road Spreading Cuba JanDec 2012 Produced Fluid 111.86 Bbl Allied Waste Systems Niagara Falls JanJun 2011 Drill Cuttings 21,434 Tons Drilling Fluid 8,590 Bbl FlowBack Fluid 1,320 Bbl JanJun 2012 Drill Cuttings 39,830.31 Tons Drilling Fluid 7,979.48 Bbl FlowBack Fracturing Sand 55.7 Tons JulyDec 2012 Drill Cuttings 11,955.35 Tons Drilling Fluid 3348.1 Bbl JulyDec 2013 Produced Fluid 525 Bbl B&L Enterprises Dewittville JanDec 2010 Produced Fluid 5187 Bbl Brant Disposal Buffalo JanDec 2008 Produced Fluid 379 Bbl JanDec 2009 Produced Fluid 781 Bbl JanDec 2010 Produced Fluid 11,079.98 Bbl JanDec 2011 Produced Fluid 2936 Bbl Casella Waste Systems Painted Post JulDec 2010 Drill Cuttings 5890.66 Tons JanJun 2011 Drill Cuttings 11,677.62 Tons

154 Downs, Roger, Conservation Director Sierra Club Atlantic Chapter, 353 Hamilton Street Albany, NY 12210 citing https://www.paoilandgasreporting.state.pa.us/publicreports/Modules/Waste/WasteByWasteFacility.aspx

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Waste Facility Location Time Period Waste Type Waste Quantity Chemung County Landfill Lowman JanJun 2011 Drill Cuttings 11,101.59 Tons FlowBack Fracturing Sand 30 Tons JulDec 2011 Drill Cuttings 30,007.71 Tons JanJun 2012 Drill Cuttings 5,436.89 Tons JulDec 2012 Drill Cuttings 39,812.4 Tons JanJun 2013 Drill Cuttings 26,042.27 Tons Flowback Fracturing Sand 50.05 Tons JulyDec 2013 Drill Cuttings 32,078.96 Tons Environmental Products Syracuse JanJun 2013 racking Fluid Waste 37.96 Bbl and Services of Vermont JulDec 2013 Fracking Fluid Waste 2,568.4 Bbl Produced Fluid 2,199.99 Bbl Hakes C&D Landfill Painted Post JulDec 2010 Drill Cuttings 13,384.51 Tons JanJun 2011 Drill Cuttings 2,943.84 Tons JulDec 2011 Drill Cuttings 39.53 Tons FlowBack Fracturing Sand 214 Tons JanJun 2012 Drill Cuttings 9,691.16 Tons Drilling Fluid 220 Bbl JulDec 2012 Drill Cuttings 565.67 Tons JanJun 2013 Drill Cuttings 3,059.72 Tons Drilling Fluid 112 Bbl JulyDec 2013 Drill Cuttings 7,621.13 Tons JulDec 2010 Drill Cuttings 308 Tons JanJun 2011 Drill Cuttings 33,633.73 Tons JulDec 2011 Drill Cuttings 38,318.86 Tons JulDec 2012 Drill Cuttings 228.01 Tons Hyland Facility Association Angelica JulDec 2010 Basic Sediment 5.55 Bbl Drill Cuttings 14,181.8 Tons Drilling Fluid 83 Bbl JanJun 2011 Drill Cuttings 19,022.31 Tons FlowBack Fracturing Sand 199.47 Tons Produced Fluid 445 Bbl JulDec 2011 Drill Cuttings 37,708.68 Tons JulDec 2012 Drill Cuttings 500.56 Tons JanJun 2013 Drill Cuttings 559.74 Tons JJ Bucher TRMT Facility Bolivar JanDec 2010 Produced Fluid 22,160.04 Bbl NY Road Spreading Chautuaqua JanDec 2010 Produced Fluid 296.78 Bbl

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Waste Facility Location Time Period Waste Type Waste Quantity JanDec 2011 Produced Fluid 659.03 Bbl JanDec 2012 Produced Fluid 750.08 Bbl JanDec 2013 Produced Fluid 935.02 Bbl Seneca Meadows Landfill Waterloo JulDec 2010 Drill Cuttings 2,277.7 Tons JanJun 2011 Drill Cuttings 2,955.31 Tons JulDec 2011 Drill Cuttings 3,708.41 Tons Zentz's Well Service – JanDec 2010 Produced Fluid 50 Bbl Roadspreading JanDec 2013 Basic Sediment 8 Bbl

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7.10 Ecosystems and Biodiversity

Impacts to the land caused by SGD/HVHF and related infrastructure expansion affect ecosystems and biodiversity. These impacts can include

• Chemical and radioactive contamination of air, water and soils

• Water cycle disturbance due to massive water extraction

• Disturbance of soil structures and microorganism communities

• Loss and fragmentation of habitats

• Disturbances to wildlife from noise and light pollution

• Impact to the health of fisheries and wildlife used for human consumption

Biodiversity impacts of HVHHF [high volume horizontal hydraulic fracturing] are similar to the impacts of many industries, although the chemical complexity and geographic extent are unusual. The major, long-term effects on biota likely to propagate through landscapes are habitat loss and fragmentation, chemical pollution, degradation of water quality, and hydrological alteration; other impacts, including noise, light, and air quality, may be more local and short-term. Biota vulnerable to HVHHF impacts include many native organisms that are important either for subsistence or in broader markets, such as medicinal plants (e.g., goldenseal (Hydrastis canadensis)),125 edible fungi, brook trout and other sport fishes,1 game birds and mammals (e.g.,wood duck (Aix sponsa)), furbearers (Americanmink (Mustela vison), river otter (Lontra canadensis), common muskrat (Ondatra zibethicus)), and “watchable” wildlife (e.g., many forestbreeding birds). For example, studies suggest that HVHHF may affect trout habitats via water temperature increase, siltation, and heavy metals. Many of the biodiversity impacts of HVHHF might be reduced by zero-loss management of chemicals, wastewater, soil, and other pollutants, but this is a challenge considering the record of leaks, spills, fugitive emissions, and disposal. Water use and truck traffic can be reduced by reusing more wastewater, but similar amounts of pollutants will require disposal. If it eventually becomes possible to drill horizontally several kilometers, fewer wellpads would be needed, thus reducing fragmentation, and allowing more wells to be sited next to highways or on derelict lands, such as abandoned strip mines. However, pipelines would still fragment forests and impinge on sensitive habitats.155

155 Kiviat, Erik. Risks to biodiversity from hydraulic fracturing for natural gas in the Marcellus and Utica Shales, Hudsonia, 2013

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7.11 Outdoor Recreation

SGD/HVHF could affect a variety of recreational activities and enjoyment of unique areas such as Bear Swamp. Contamination could affect medicinal and food plants (such as berries and other wild fruit), fish and wildlife. The enjoyment of foraging, fishing and hunting could be all be affected if the plants, fish and animals are rendered unfit for consumption.

From the NYSDOH Report156

“Another data gap highlighted by the expert consultants was the need for evaluation of uncertainties regarding the potential indirect public health impacts that could be associated with degradation of surface waters and wetlands through impacts on fish resources (recreationally and as a source of healthy food), other healthy recreational opportunities (e.g., swimming, boating) and flood control.”

156 NYS DOH Report, “A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development”, December 2014

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7.12 Earthquakes and Seismic Activity

Map of NYS Geologic Faults 157:

157 NYSDEC Revised Draft Supplemental Environmental Impact Statement, 2011 http://www.dec.ny.gov/energy/75370.html

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Table of NYS Seismic Events December 1970-July 2009158:

Revised Draft SGEIS 2011, Page 4-30

158 NYSDEC Revised Draft Supplemental Environmental Impact Statement, 2011 http://www.dec.ny.gov/energy/75370.html

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Map of NYS Seismic Events 1970-2009159:

As shown on both the table and map of seismic events, Albany County has a large number of lower intensity earthquakes(up to 3.9 magnitude). From NYSDEC Revised DSGEIS: New York State is not associated with a major fault line like the San Andreas, but seismic events

159 NYSDEC Revised Draft Supplemental Environmental Impact Statement, 2011 http://www.dec.ny.gov/energy/75370.html

111 Major Findings – Local Impacts are common in New York. ...The largest seismic event during the period 1970 through 2009 is a 5.3 magnitude earthquake that occurred on April 20, 2002, near Plattsburgh, Clinton County. Damaging earthquakes have been recorded since Europeans settled in New York in the 1600s. The largest earthquake ever measured and recorded in New York State was a magnitude 5.8 event that occurred on September 5, 1944, near Massena, New York.

7.12.1 SGD/HVHF Related Earthquakes

An increase in earthquakes and in seismic activity and intensity has been associated with SGD/HVHF processes, especially with the practice of forcing HFHF waste fluids underground.

“Earthquakes can be induced as part of the process to stimulate the production from tight shale formations, or by disposal of wastewater associated with stimulation and production.”160

The following information is excerpted and pasted verbatim from the NYSDEC Revised DSGEIS:161

160 Ellsworth, W.L. Injection-Induced Earthquakes. Science. July 2013 161 http://www.dec.ny.gov/energy/75370.html

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113 Major Findings – Local Impacts

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7.13 Public Health and Safety

7.13.1 NYSDOH Public Health Review Major Findings162

All the potential impacts previously discussed can affect public health and safety.

The NYSDOH recommended a ban on SGD/HVHF.

Here is their summary of “some of the environmental impacts and health outcomes potentially associated with HVHF activities:

• Air impacts that could affect respiratory health due to increased levels of particulate matter, diesel exhaust, or volatile organic chemicals.

• Climate change impacts due to methane and other volatile organic chemical releases to the atmosphere.

• Drinking water impacts from underground migration of methane and/or fracking chemicals associated with faulty well construction.

• Surface spills potentially resulting in soil and water contamination.

• Surface-water contamination resulting from inadequate wastewater treatment.

• Earthquakes induced during fracturing.

• Community impacts associated with boom-town economic effects such as increased vehicle traffic, road damage, noise, odor complaints, increased demand for housing and medical care, and stress.

Additionally, an evaluation of the studies reveals critical information gaps. These needto be filled to more fully understand the connections between risk factors, such as airand water pollution, and public health outcomes among populations living in proximity toHVHF shale gas operations (Penning, 2014; Shonkoff, 2014; Werner, 2015).”

7.13.2 SGD/HVHF Chemicals SGD companies add proppants (usually sand, which is added to keep cracks open), and

162 NYS DOH Report, “A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development”, December 2014

115 Major Findings – Local Impacts chemicals ,to the water used for HVHF. The chemicals perform various functions as: acids, biocides, (gel) breakers, clay stabilizers, corrosion inhibitors, crosslinkers, friction reducers, gelling agents, iron controllers, non-emulsifiers, pH adjusting agents, scale inhibitors, surfactants163. Many of the chemicals used are known to be toxic to humans and animals. Some are carcinogens. Some are endocrine disrupting chemicals (EDCs) that can interfere with normal hormone action and have been associated with cancer, infertility and impaired neural and immune function164, as well as with stillbirth, congenital deformities, decreased sperm production and poor sperm mobility.165 A report cited in the NYSDOH Public Health Review166 addresses the exemptions SGD companies have regarding the Safe Drinking Water Act (SDWA) and Underground Injection Control (UIC), and that they are not required to disclose the chemicals used in HVHF:

“We conclude that proper documentation/reporting systems for wastewater discharge and spills need to be enforced at the federal, state, and industrial level. Furthermore, Underground Injection Control (UIC) requirements under SDWA should be extended to hydraulic fracturing operations regardless if diesel fuel is used as a fracturing fluid or not. One of the biggest barriers that hinder the advancement of our knowledge on the hydraulic fracturing process is the lack of transparency of chemicals used in the practice. Federal laws mandating hydraulic companies to disclose fracturing fluid composition and concentration not only to federal and state regulatory agencies but also to health care professionals would encourage this practice. The full disclosure of fracturing chemicals will allow future research to fill knowledge gaps for a better understanding of the impacts of hydraulic fracturing on human health and the environment.”

Again from the DOH Report167:

“Potentially toxic substances include petroleum distillates such as kerosene and diesel fuel (which contain benzene, ethylbenzene, toluene, xylene, naphthalene and other chemicals); polycyclic aromatic hydrocarbons; methanol; formaldehyde; ethylene glycol; glycol ethers; hydrochloric acid;

163 FracFocus Chemical Disclosure Registry, https://fracfocus.org/chemical-use/ 164 World Health Organization, http://www.who.int/ipcs/publications/new_issues/endocrine_disruptors/en and http://huffpost.com 165 NYS American Association of Pediatrics, Update on Hydrofracking, http://nysaap.org/update-on-hydrofracking/#wrap 166 NYS DOH Report, “A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development”, December 2014, citing Chen, et al, “Hydraulic Fracturing: Paving the Way for a Sustainable Future?”, Environ Public Health, Epub 2014 Mar 25 167 http://www.earthworksaction.org/issues/detail/hydraulic_fracturing_101

116 Major Findings – Local Impacts and sodium hydroxide. Very small quantities of some [HVHF] chemicals are capable of contaminating millions of gallons of water....[for example} benzene, a known human carcinogen ... is toxic in water at levels greater than five parts per billion (or 0.005 parts per million).

...volatile organic compounds (VOCs) ..have been shown to be present in [HVHF] fluid flowback wastes at levels that exceed drinking water standards. For example, testing of flowback samples from Texas have revealed concentrations of 1,2-Dichloroethane at 1,580 ppb, which is more than 316 times EPA’s Maximum Contaminant Level for 1,2-Dichloroethane in drinking water.

VOCs not only pose a health concern while in the water, the volatile nature of the constituents means that they can also easily enter the air. According to researchers at the University of Pittsburgh's Center for Healthy Environments and Communities, organic compounds brought to the surface in the [HVHF] flowback or produced water often go into open impoundments, where the volatile organic chemicals can offgas into the air.

7.13.3 Radioactive Material

Naturally Occurring Radioactive Materials (NORMs) exist in many rocks, including Marcellus Shale. HVHF drilling excavation brings Technically Enhanced NORMs (TENORMs) to the surface. TENORMs concentrate radioactive material.

“Radium forms when isotopes of uranium or thorium decay in the environment. Most radium (radium-226) originates from the decay of the plentiful uranium-238.

The various isotopes of radium originate from the radioactive decay of uranium or thorium. Radium-226 is found in the uranium-238 decay series, and radium-228 and -224 are found in the thorium-232 decay series. Radium-226, the most common isotope, is an alpha emitter, with accompanying gamma radiation, and has a half-life of about 1600 years. Radium-228, is principally a beta emitter and has a half-life of 5.76 years. Radium- 224, an alpha emitter, has a half life of 3.66 days. Radium decays to form isotopes of the radioactive gas radon.”168

Radium 226 (RA226) and Radium 228 (RA228) are present in Marcellus Shale. They are soluble in water, may enter drinking water sources, and cannot be removed by sewage treatment plants.169 Radiation levels exceeding EPA standards have been detected in both solid and liquid

168 EPA, http://www.epa.gov/radiation/radionuclides/radium.html 169 Downs, Roger, Testimony, Forum on the Public Health and Environmental Risk Posed by Hydraulic Fracturing By-Products and the Acceptance Thereof by NYS Publicly Owned Treatment Works and Landfills, May 13, 2014

117 Major Findings – Local Impacts

SGD/HVHF waste170.

7.13.4 Health Impacts from HVHF Well Additives and Hazardous Waste

HVHF Additives Used in the United States171:

In the United States, about 750 compounds have been listed as additives for hydraulic fracturing in a report to the US Congress in 2011 after originally being kept secret for "commercial reasons".172 & 173 The following is a partial list of the chemical constituents in additives that are used or have been used in fracturing operations, as based on the report of the New York State Department of Environmental Conservation, some are known to be carcinogenic.174

Also among these additives are known endocrine disruptors.

The following table from The American Academy of Pediatrics, Update on Fracking175, summarizes the health effects of 12 selected HVHF toxins: (Source in table not italicized.)

“Table 1. shows a list of 12 chemicals used in fracking, or found in the brine drawn out of the well. Most physicians will recognize that these are highly toxic substances.

Chemicals Route of Exposure Effects in Humans Effects in Animals Acetic Anhydride Inhalation/Ingestion Severe irritation of eyes, Highly corrosive to eyes, upper respiratory mucous upper respiratory Eye/skin contact membranes and skin to very mucous low concentrations membranes and skin Highly volatile Permanent corneal scarring Direct mortality

Explosion related injuries

170 Downs, Roger, Testimony, Forum on the Public Health and Environmental Risk Posed by Hydraulic Fracturing By-Products and the Acceptance Thereof by NYS Publicly Owned Treatment Works and Landfills, May 13, 2014 171Wikipedia, http://www.ask.com/wiki/List_of_additives_for_hydraulic_fracturing? (See References at end of table) 172Nicholas Kusnetz (April 8, 2011). "Fracking Chemicals Cited in Congressional Report Stay Underground", ProPublica. 173 Chemicals Used in Hydraulic Fracturing (Report). Committee on Energy and Commerce U.S. House of Representatives. April 18, 2011., http://democrats.energycommerce.house.gov/sites/default/files/documents/Hydraulic-Fracturing-Chemicals- 2011-4-18.pdf 174 "Natural Gas Development Activities and High‐volume Hydraulic Fracturing" . New York State Department of Environmental Conservation. pp. 45–51. 175 Update on Fracking, American Academy of Pediatrics, http://nysaap.org/update-on-fracking/#wrap

118 Major Findings – Local Impacts

Chemicals Route of Exposure Effects in Humans Effects in Animals Arsenic Oral-drinking IARC Group 1 Carcinogen: Carcinogen: contaminated water Adenocarcinoma of the lung Adenocarcinoma of lung Inhalation Cancers of skin, digestive tract, liver, urinary bladder, Lymphocytic leukemia kidney, lymphatic and hematopoietic, meningioma Lymphoma

Noncancer chronic effects: Severe peripheral vascular disease, “blackfoot disease” Arsenicosis: arsenic poisoning Benzene Inhalation IARC Group 1 Carcinogen: Carcinogen in Leukemia (acute experimental animals Oral-drinking myelogenous) In rodents: contaminated water Oral cavity Noncancer acute effects: Malignant lymphoma Neurological: drowsiness, Lung Cancer headaches, unconsciousness, Mammary gland convulsions Skin, eyes and upper Noncancer acute effects: respiratory tract Irritation Neurologic, immunologic, hematologic GI: Nausea, vomiting Low toxicity from Noncancer chronic effects: inhalation Blood dyscrasias, aplastic Moderate toxicity from anemia, excessive bleeding, ingestion leukopenia Immunosuppression Noncancer chronic effects: Developmental: low birth Similar to human weight, delayed bone findings formation Chlorine Dioxide Inhalation Severe respiratory and eye Severe respiratory and irritant,Congestion of lungs, eye irritant chronic bronchitis Purulent bronchitis

Mortality at 19 ppm Mortality at 150-200 ppm

119 Major Findings – Local Impacts

Chemicals Route of Exposure Effects in Humans Effects in Animals Ethylene glycol Ingestion of Acute:Neurotoxicity Hepatic and renal (commonly contaminated water Cardiopulmonary effects damage known as Renal antifreeze) Low dose effects: eyes, nose Fetotoxicity in rodents and throat Formaldehyde Inhalation IARC Group 1 Carcinogen: Carcinogenic in Nasopharyngeal and experimental Ingestion in sinonasal cancer, animals:In rodents: contaminated water Lymphohematopoietic Nasal squamous cell or food cancer carcinoma Leiomyosarcoma of Noncancer acute effects: stomach, Respiratory intestines Eye, nose and throat irritation Lung cancer

Noncancer chronic effects: Noncancer acute and Respiratory chronic effects: Eye, nose, throat Lesions on nasal Skin irritation; contact epithelium and dermatitis lower respiratory system Menstrual disorders Weight loss Lead Inhalation/Ingestion IARC Group 2B Carcinogen: Carcinogenic to Associated with cancer of: experimental animals: Dermal contact Lung Adenocarcinoma of the Stomach kidney Urinary bladder Tumors of brain Hematopoietic system Noncancer effects: Lung Neurotoxicity (especially fetal and childhood Noncancer effects: development) Birth defects Kidney damage Anemia Immune system Cardiovascular system Male infertility (decreased sperm count) Phenol Inhalation/Ingestion IARC Group 3 Carcinogen: Carcinogenic to (not classifiable in humans) experimental animals:

120 Major Findings – Local Impacts

Chemicals Route of Exposure Effects in Humans Effects in Animals Eye/skin contact Leukemia and lymphoma Non cancer acute effects: Absorption through Severe irritation to eyes, Noncancer acute effects: skin skin, Severe irritant of eyes mucous membranes (immediate corneal CNS impairment opacification in rabbits) Damage to liver and kidneys Irritant of upper Mortality following high respiratory mucous dose membranes; exposure Neurotoxic to motor centers in CNS (1 gram oral (twitching, convulsions) ingestion=lethal, Tachy/bradycardia, Death associated with hypotension respiratory failure) Dyspnea Noncancer chronic effects: Systemic disorders including Noncancer chronic Gastrointestinal, effects: neurological, dermatological Damage to lung, liver, kidneys, heart Toluene Inhalation/Injestion IARC Group 3 Carcinogen Acute: Central nervous system Noncancer acute effects: depression Neurotoxic; fatigue, drowsiness, headaches, Immunosuppressed nausea, unconsciousness (increased risk of Cardiac arrhythmia pulmonary infection) Oral ingestion, high dose=lethal (associated with Chronic: severe CNS depression, Hepatic pulmonary hemorrhage, Renal myocardial necrosis, and Pulmonary acute tubular renal necrosis) Impaired hearing Developmental toxicant Noncancer chronic effects: CNS depression, ataxia, tremors, cerebral atrophy, impaired speech, hearing and vision; Inflammation and degeneration of nasal

121 Major Findings – Local Impacts

Chemicals Route of Exposure Effects in Humans Effects in Animals epithelium, Pulmonary lesions

Maternal Reproductive : increased spontaneous abortions

Developmental: neurotoxicant, attention deficit, cranial-facial and limb anomalies Uranium 238 Ingetsion (food, No information on acute No information on acute water) effects effects.

Inhalation Chronic effects: Chronic effects: Renal toxicity Inflammation of nasal mucosa Renal toxicity Radium-226 Ingestion (drinking IARC Group 1 Carcinogen water) No information on acute effects.

Noncancer chronic effects: Anemia, necrosis of the jaw, brain abscess, bronchopneumonia and death (from oral ingestion)

Acute leukopenia (from inhalation) Radon-222 Inhalation IARC Group 1 Carcinogen Weight loss, hematologic disorders No information on acute effects.

Non cancer chronic effects: Chronic lung disease, pneumonia, Pulmonary fibrosis

122 Major Findings – Local Impacts

Key for the above Table 1:

IARC : International Agency for Research on Cancer: ▪ Group 1= known to cause cancer in humans and animals; ▪ Group 2A= probably carcinogenic to humans; ▪ Group 2B= possibly carcinogenic to humans; ▪ Group 3= not classifiable as to its carcinogenicity in humans ▪ ppm =parts per million.

The following list briefly summarizes common effects of exposure to a wide spectrum of additional fracking chemicals:

• Neurological – behavioral and/or cognitive symptoms, may be associated with autistic disorders, behavioral and psychosocial disorders • Respiratory – both acute and chronic respiratory effects, exacerbation of asthma, chronic obstructive lung disease, chronic restrictive lung disease, chronic bronchitis, lung cancer • Cardiovascular – congenital heart disease, thickening of peripheral vessels • Gastrointestinal – nausea, vomiting and diarrhea • Renal – acute and or chronic renal insufficiency • Urological – Arsenic increases the risk of bladder cancer 19 • Reproductive – infertility, stillbirth, congenital deformities, decreased sperm production and poor sperm mobility • Immunological – allergies, autoimmune diseases and immunosuppressant disorders • Mucocutaneous / Dermatologic – irritant to eyes, ears, oro-pharynx, nose and sinuses • Hematopoietic – blood dyscrasias • Oncological – some chemicals are direct mutagens, laying the groundwork for later onset of various cancers. Other carcinogens, while not directly mutagenic or genotoxic, support the carcinogenic process by down-regulating tumor suppressor genes or by up-regulating tumor promoter genes. • Endocrine – endocrine disruptors mimic the action of hormonal tissues or, alternatively, block endogenous hormonal activity of the thyroid, ovaries, testes

7.13.5 Noise

In a letter to former DOH Commissioner, Dr. Nirav Shah176, UCLA Professor Richard J. Jackson, MD, MPH, FAAP, commenting on the NYSDEC draft SGEIS, wrote:

176NYS DOH Report, “A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development”, December 2014

123 Major Findings – Local Impacts

“Noise measurement and abatement are also necessary. In the SGEIS it appears that intermittent noise exposures are dismissed because they are transient; yet from a health standpoint noise poses a significant risk. For example, engine brake noise from large trucks passing a school or health facility will be intermittent but disruptive and potentially harmful.”

• Noise impacts from pipeline Compressor Stations can be significant, increasing with proximity to the facility.

• Vibroacoustic Disease (VAD) is a noise-induced, whole body pathology of a systemic nature, caused by excessive exposure to low frequency (LF) noise. VAD can lead to severe medical conditions:177&178

◦ Cardiac Infarcts (Castelo Branco, 1999 and Castelo Branco, et al, 1999)

◦ Stroke (Castelo Branco, 1999 and Castelo Branco, et al, 1999)

◦ Cancer (Silva, et al, 1996 and Castelo Branco, et al, 1999)

◦ Epilepsy (Martinho Pimenta, et al, 1999a)

◦ Rage reactions (Castelo Branco, et al, 1999)

◦ Suicide (Castelo Branco, et al, 1999)

7.13.6 Odor and Light Pollution

From the NYSDOH Report179:

“The public health expert consultants particularly emphasized that data gaps exist regarding the degree and extent to which HVHF contributes indirectly to human health impacts due to stressors including off-site nuisance odors and visual impacts such as nuisance light pollution (i.e., beyond simply annoyance). All of these factors can influence stress and quality of life perceptions that can adversely impact health.” Odors that result from diesel fuel emissions and methane releases have acute and chronic impacts on respiratory health.

Sometimes its what you don't smell that may hurt you. For example, the operators of the

177“Noise Pollution Takes Toll on Everyday Happiness, Everyday Noise Can Overstimulate the Body's Stress Response”, Rick Weiss, The Washington Post, June 5, 2007 178“Monitoring Vibroacoustic Disease”, Castelo Branco, et al 179 NYS DOH Report, “A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development”, December 2014

124 Major Findings – Local Impacts proposed Constitution Pipeline are not planning to add odorant to that gas180 – the familiar smell that lets you know there's a gas leak. Odorants are added to urban and suburban lines, but a farmer working near a pipeline going through rural land in NYS may not have the advantage of such warning.

7.13.7 Health Care Systems, Accidents & Emergency First Responders

Individuals, and their insurance carriers, are likely to foot the bill for cost-of-care for SGD/HVHF health problems, with the possible exception of conspicuous industry accidents where liability is clearly evident. Police, fire, rescue and emergency medical technicians would be impacted by any additional health and accident impacts.

Deerfield, MA Fire Department’s Prudential Committee, in a report to Deerfield selectmen, wrote:

“Departments that have dealt with pipeline fires report an incineration zone of a tenth of a mile radius. Flammable structures or fuel within that radius can be anticipated to expand the zone. In 2010, a faulty weld on a 30-inch gas pipeline in suburban San Francisco resulted in the death of eight people and the destruction of 20 homes. Although we are a rural community the pipeline will put some residents within an incineration zone. The diameter of the proposed pipeline is to be 36 inches to 42 inches.” “We’re a small department, [said] Committee Chair Patrick O’Brian...“Kinder Morgan has been so closed mouthed about it, ... we’re going on .. other people’s experiences ... You’ll have inevitable leaks. I’m concerned.” “To think that our Deerfield Fire Department would be responsible for responding to an incident like this is ridiculous,” ... “We have no capacity. Who’s going to benefit from this? It’s not us. They’re just using our town and our resources, and that’s not right. I see no benefit to the town of Deerfield as a community.”181

180 FERC FEIS, Constitution Pipeline and Wright Interconnect Projects, October 2014 181 Davis, R ,Compressor stations reason for concern? , November 23, 2014 http://www.recorder.com/home/14464943-95/compressor-stations-reason-for-concer

125 Major Findings – Local Impacts

7.13.7.1. Traffic and Accidents

• Industrial truck accidents result in higher mortality rates and more serious injuries than accidents that involve passenger vehicles.

• Truck accidents that result in spilling of SGD/HVHF materials could permanently impact local water and soil.

• An increase in accident incidence would impact our emergency first responders.

• In the Eagle Ford area of Texas, a TX DOT analysis showed fatal traffic accidents involving commercial vehicles, increasing from six in 2008 to 24 [in 2011]. LaSalle County, had a 418 percent increase in that type of crash since 2008, and McMullen County, a 1,050 percent increase. An exact count of traffic deaths is difficult to come by because local agencies sometimes don't amend crash reports to the Texas Department of Transportation when people die later.182

• Increased incidence of DUI and DWI have been associated with SGD/HVHF areas.183

• Increased industrial truck traffic could affect respiratory health, especially for children, the elderly, or other high-risk populations, because of increased levels of dust and diesel exhaust.184

• Vehicle insurance rates for residents may increase.

Also from the NYSDOH report185:

“A recent study from Pennsylvania [also] reports that automobile and truck accident rates in 2010– 2012 from counties with heavy HVHF activity were between 15% and 65% higher than accident rates in counties without HVHF. Rates of traffic fatalities and major injuries were higher in 2012 in heavy drilling counties in southwestern Pennsylvania compared to non-drilling counties (Graham, 2015).”

182 Konnath, H., Traffic Deaths Soar in Eagle Ford Shale Areas, July 8, 2012, Houston Chronicle, http://www.chron.com/news/houston-texas/article/Traffic-deaths-soar-in-eagle-ford-shale-areas 183 Steingraber, S., How Fracking Impacts Public Health, http://concernedhealthny.org/category/press-releases/ 184 Ridlington, E, et al, Fracking by the Numbers, October 2013 185 NYS DOH Report, “A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development”, December 2014

126 Other Findings: Permit Jurisdiction and Local Authority

8. Other Findings: Permit Jurisdiction and Local Authority

The ZRC was charged with the task to: “Review current zoning laws and permit process with respect to potential applications for natural gas drilling activities within or affecting the Town of Westerlo.”

1. NY towns have no authority to issue or deny natural gas well drilling permits, but towns may prohibit SGD/HVHF activities by using the local government land use authority of Municipal Home Rule186 granted in the NYS Constitution.

2. The NYSDEC Division of Mineral Resources (DMR) has jurisdiction over natural gas well drilling permits.187 NYSDEC describes the well permitting process as:

“An owner with an approved Oil and Gas Organization Report and adequate financial security on file with the Department must submit to the appropriate Division of Mineral Resources regional office: 1. An application for a Permit to Drill, Deepen, Plug Back or Convert a Well, and 2. A description of the proposed drilling program, three copies of a plat, the permit fee, and an Environmental Assessment Form (EAF)

Issuance of a Permit to Drill, Deepen, Plug Back or Convert a Well by the Department is required prior to commencement of operations. The permit grants the owner/operator permission to carry out operations for which the permit is granted. The operations must be commenced within the 180 day permit period. All well owners drilling wells under permits issued by the Division of Mineral Resources must use a drilling contractor that is registered with the Division.”

186http://dryden.ny.us/wp-content/uploads/2014/07/130-131opn14-Decision.pdf, June 30, 2014 187http://www.dec.ny.gov/energy/1772.html

127 Conclusions

9. Conclusions

• Even if NYS implements an effective and durable ban on HVHF, Westerlo is still exposed to impacts from SGD infrastructure expansion (pipelines, compressor stations, LNG facilities, etc.), hazardous waste contamination and disposal, water extractions, etc.

• Reliance on state-level authority, like the NYSDEC, jeopardizes the goals described in the Town Board charge to the ZRC and the key objectives of the Comprehensive Plan (CP), by passively complying with provisions over which the Town has no control.

• NY towns can use the land use authority of Municipal Home Rule to prohibit SGD/HVHF drilling and other heavy industrial activities. Westerlo can use this authority to positively assert commitment to the goals described in the town board's charge to the ZRC, and to the key objectives of the CP. This authority was tested in litigation challenging zoning amendments enacted by the towns of Dryden and Middlefield, and upheld in lower court rulings and by decision of the NYS Court of Appeals.188

• A local economy that finds ways to preserve, rather than sacrifice, our rural/agricultural character and way of life, is a challenge facing Westerlo and many similar communities. A stronger, more diverse local economy would provide better immunity to Oil & Gas industry projects and other heavy industry pressures. It would also provide alternative opportunities for our residents and broader support for the cost of Town services, and is consistent with the economic development objectives in the CP.

188 NYS Court of Appeals, Opinion by Judge Graffeo. Chief Judge Lippman and Judges Read, Rivera and Abdus- Salaam concur. Judge Pigott dissents in an opinion in which Judge Smith concurs. Decided June 30, 2014

128 Conclusions

9.1 Compliance with the Westerlo Comprehensive Plan

Land use regulations and any new zoning amendments must comply with the Town's CP. Westerlo's CP Mission Statement reads:

“The general sentiment of Planning Board members and participating members of the public throughout the Comprehensive Plan process, is that people generally like the Town of Westerlo, as it currently exists, and a Comprehensive Plan should ensure that aspects of the present Town be preserved and protected.

As part of this process, the Planning Board repeatedly conducted an inquiry to determine what particular aspects of the present Town people find attractive and worthy of protection in the Comprehensive Plan.

The single most consistently identified aspect of the Town, deemed highly valuable and worthy of immediate and continued protection, is those lands currently suitable for rural/agricultural use.

To establish guidelines for land use and decision-making processes to obtain future compatible results with the shared vision for the future of our Town.

The crucial importance of active rural/agricultural lands was defined in a number of ways. These included the aesthetic value of the farm operations themselves as well as the views and vistas. Also, the fact that active farm operations provide the Town with a signature distinctive characteristic as a rural/agricultural community and provide a direct connection to the, predominate, aspect of the history and culture of Westerlo. The economic benefit from active rural/agricultural operations was also identified and is wholly supported through the RIGHT TO FARM ACT.”

The industrializing impacts of SGD/HVHF are incompatible with the Westerlo Comprehensive Plan.

129 Recommendations

10. Recommendations

The ZRC recommends a single comprehensive zoning amendment that is simple, that effectively minimizes SGD/HVHF risks, and that discourages litigation by supporting the basis for the amendment with legally defensible findings. It would require the least amount of administrative resources to implement and enforce. It would not impose restrictions on other types of desirable commercial development and it imposes no road use restrictions unrelated to SGD/HVHF.

Alternative targeted zoning amendments or Local Laws could be considered to address, for instance, waste management, road use, noise, infrastructure build-out, etc. Land use regulations of this type should be accompanied by bonding and water testing requirements. Examples of such targeted amendments and Local Laws are included in the Appendix section starting on page 191.

10.1 Primary Recommendation: A Carefully Customized Zoning Amendment

The town of Westerlo can best accomplish the goals of: “maintain[ing] and support[ing] the character of the Town”, promoting the health, safety and welfare of the community, and supporting the key objectives of the Comprehensive Plan, by:

◦ Employing expert, experienced, pro-bono legal assistance to review Westerlo's Comprehensive Plan and Zoning Law in order to to:

• Draft a single, carefully customized land use amendment

• Accompanied by relevant, legally defensible findings that

• Address the heavy industrial impacts of SGD/HVHF on the Town

130 Recommendations

The ZRC consulted with attorney David Slottje, member of the Community Environmental Defense Council (CEDC)189 legal team that amended and successfully defended the Dryden and Middlefield zoning laws. Mr. Slottje has offered his services, pro-bono, to review Westerlo's Zoning Law and Comprehensive Plan and to draft changes to our Zoning Law related to SGD/HVHF impacts. CEDC has provided this service, free-of-charge, to many other communities in NYS.

10.1.1 A Simple and Effective Zoning Amendment: Prohibited Uses

An example of a simple, effective and defensible zoning amendment is found in the Town of Dryden, Tompkins County, zoning law. This amendment was drafted by CEDC. It uses the authority of New York's Municipal Home Rule Law, has been challenged by the O&G industry in litigation and upheld190 in lower courts and by the highest level of NYS Court of Appeals.191

Dryden's amendment addresses all the industrializing impacts of SGD/HVHF, including well- drilling, infrastructure expansion, waste management and storage yards, without creating specific restrictions on other kinds of commercial development or imposing onerous road use or noise ordinances.

Dryden's amendment includes definitions that refer to “Natural Gas”, and so would also apply to the “conventional” natural gas production of the past, which used only vertically drilled wells to access open pockets of natural gas. Those gas pockets have been almost entirely exhausted, so vertical drilling alone is no longer productive. Virtually all new natural gas production is done through the the use of horizontal drilling in tightly held shale rock, the “unconventional” natural gas production of SGD/HVHF.

Any amendment must be customized to Westerlo's CP and Zoning Law. We cannot copy another town's land use law and expect it to be effective and legally defensible.

189 http://www.cedclaw.org 190 Except for paragraph “(5) Validity of Permits” 191 http://dryden.ny.us/wp-content/uploads/2014/07/130-131opn14-Decision.pdf, June 30, 2014

131 Recommendations

10.1.2 Example: Text of Town of Dryden, NY Zoning Amendment

(Note: Text of this verbatim source not italicized.)

The Town of Dryden Zoning Ordinance is hereby amended as follows:

1. Appendix A (Definitions) is amended by adding new definitions to read as follows: “Natural Gas” shall mean any gaseous substance, either combustible or noncombustible, which is produced in a natural state from the earth and which maintains a gaseous or rarified state at standard temperature and pressure conditions, and/or gaseous components or vapors occurring in or derived from petroleum or other hydrocarbons.

“Natural Gas and/or Petroleum Exploration” shall mean geologic or geophysical activities related to the search for natural gas, petroleum or other subsurface hydrocarbons including prospecting, geophysical and geologic seismic surveying and sampling techniques, which include but are not limited to core or rotary drilling or making an excavation in the search and evaluation of natural gas, petroleum, or other subsurface hydrocarbon deposits.

“Natural Gas and/or Petroleum Exploration and Production Materials” shall mean any solid, semi-solid, liquid, semi- liquid or gaseous material used in the exploration or extraction of natural gas.

“Natural Gas Exploration and/or Petroleum Production Wastes” shall mean any garbage, refuse, cuttings, sludge, flow-back fluids, produced waters or other discarded materials, including solid, liquid, semi-solid, or contained gaseous material that results from or is associated with the exploration, drilling or extraction of natural gas and/or petroleum.

“Natural Gas and/or Petroleum Extraction” shall mean the digging or drilling of a well for the purposes of exploring for, developing or producing natural gas, petroleum or other subsurface hydrocarbons.

132 Recommendations

“Natural Gas and/or Petroleum Support Activities” shall mean the construction, use, or maintenance of a storage or staging yard, a water or fluid injection station, a water or fluid gathering station, a natural gas or petroleum storage facility, or a natural gas or petroleum gathering line, venting station, or compressor associated with the exploration or extraction of natural gas or petroleum.

2.Article XXI (Miscellaneous) is amended by adding a new Section 2104 to read as follows:

“Section 2104. Prohibited Uses.

(1) Prohibition against the Exploration for or Extraction of Natural Gas and/or Petroleum.

No land in the Town shall be used: to conduct any exploration for natural gas and/or petroleum; to drill any well for natural gas; to transfer, store, process or treat natural gas; or to dispose of natural gas exploration or production wastes; or to erect any derrick, building, or other structure; or to place any machinery or equipment for any such purposes.

(2)Prohibition against the Storage, Treatment and Disposal of Natural Gas and/or Petroleum Exploration and Production Materials.

No land in the Town shall be used for: the storage, transfer, treatment and/or disposal of natural gas and/or petroleum exploration and production materials.

3) Prohibition against the Storage, Treatment and Disposal of Natural Gas and/or Petroleum Exploration and Production Wastes.

No land in the Town shall be used for: the storage, transfer, treatment and/or disposal of natural gas and/or petroleum exploration and production wastes.

(4) Prohibition against Natural Gas and/or Petroleum Support Activities.

No land in the Town shall be used for natural gas and/or petroleum support activities.

133 Recommendations

(5) Invalidity of Permits.192

No permit issued by any local, state or federal agency, commission or board for a use which would violate the prohibitions of this section or of this Ordinance shall be deemed valid within the Town.

10.2 Alternative Recommendation: Protection of Rural Environment Law

The Town of Roseboom, Otsego County, NY, enacted a separate Local Law to address Heavy Industrial impacts of SGD/HVHF. It lists the objectives of the Town's CP in the Purpose section of that law. The text of this law is included in the Appendix page 191.

10.3 Other Recommendations: Create an Economic Development Team

Two of the key objectives of The Comprehensive Plan relate to economic development:

• Improve and expand municipal infrastructure to support new development and encourage state of the art telecommunications infrastructure to spark business development and technology growth. (Note: Article 17 Section of the Local Law #1 of 1989- Wireless Communications Facilities)

• Promote commercial expansion, niche retail and specialty farming, along with small technology companies, which will flourish with enhanced telecommunications infrastructure

A stronger local economy and an innovative relationship to the wider economy, can give Westerlo better immunity to pressures that threaten our rural/agricultural community character

192 This section of Dryden's zoning law was not upheld by the NYS Supreme Court http://dryden.ny.us/wp-content/uploads/2014/07/130-131opn14-Decision.pdf, June 30, 2014

134 Recommendations and the health and safety of our residents. It would also provide alternative opportunities for our residents and more financial support for Town services. The CP states that “people generally like the Town of Westerlo, as it currently exists, and a Comprehensive Plan should ensure that aspects of the present Town be preserved and protected.” We can expect, then, that the community would generally support genuine efforts to preserve and protect those aspects. An Economic Development Team that is not political, that welcomes diverse points-of-view, and that has the grit to work through obstacles and present viable solutions, can help our town keep what we like and change what we don't like.

135 Actionable Items: Sample Town Board Resolutions

11. Actionable Items: Sample Town Board Resolutions

11.1 Resolution #1: Create A Carefully Customized Zoning Amendment

RESOLUTION TO CONSTRUCT A CAREFULLY CUSTOMIZED ZONING AMENDMENT TO ADDRESS IMPACTS TO THE TOWN OF SHALE GAS DEVELOPMENT, INCLUDING HIGH VOLUME HORIZONTAL HYDRRAULIC FRACTURING, WITHOUT IMPOSING UNRELATED RESTRICTIONS

WHEREAS, the Town of Westerlo is located in Marcellus Shale and Utica Shale Basins; and

WHEREAS, the Marcellus Shale and Utica Shale are fine grained sedimentary rock deposited by a shallow sea and that such Shale is a porous rock that contains hydrocarbons but has practically no permeability; and

WHEREAS, due to technological advances and energy related issues, the exploration and production of natural gas in the Marcellus Shale and Utica Shale Gas Fields has become economically feasible in the recent past; and

WHEREAS, shale gas operations include the construction of access roads, clearing and leveling of a well pad site, substantial local water extraction and water storage, potential digging of waste reserve pits or creation of underground waste wells, management of both solid and liquid waste, and the construction of infrastructure that would include gathering lines, valve stations, and connection to pipelines, which may be local pipelines and/or interstate pipelines, and such infrastructure may also include compressor stations, storage facilities such as Liquified Natural Gas (LNG) facilities, and/or Compresses Natural Gas (CNG) facilities, and waste facilities; and

136 Actionable Items: Sample Town Board Resolutions

WHEREAS , well stimulation, which is the process of creating or enlarging existing pores to allow gas to more readily reach the producing well, and HIGH VOLUME HORIZONTAL HYDRALIC FRACTURING (HVHF) (“fracking”), associated therewith, that includes the use of a fracturing fluid, which is water that is amended with chemicals, some of which are known to be carcinogenic and endocrine disruptive, and proppants, such as sand, and that such fracturing fluid is applied at high pressure, and may use explosives, to create fractures in Shale and prop open those fractures; and

WHEREAS, drilling and high volume horizontal hydraulic fracturing involves the use of heavy equipment, including large trucks to transport many tons of water, sand and other proppants, hazardous and non-hazardous chemicals, solid and liquid waste, construction and related material; and

WHEREAS, such construction and related material requires local storage areas of several acres; and

WHEREAS, two to ten million gallons of water per well would likely be drawn from local water sources, and that such operations generally involve the development of several wells per well pad, multiplying water requirements; and

WHEREAS, HVHF infrastructure, such as pipelines, compressor stations, LNG, CNG, and waste management facilities, etc. have cumulative impacts that are independent of local or regional HVHF development and will not likely be affected by a New York State (NYS) ban on HVHF; and

WHEREAS, oil and natural gas exploration and operations are exempt from the Federal Clean Air Act (CAA), Federal Clean Water Act (CWA), Federal Safe Drinking Water Act (SDWA), the Federal Resource Conservation and Recovery Act ( RCRA), the Federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly known as The Superfund), the Federal Toxic Substances Control Act (TSCA), and the Federal Energy Policy Act of 2005 (which contains the “Halliburton Loophole”), and from Underground Injection Control (UIC), except for diesel fuel UIC; and

137 Actionable Items: Sample Town Board Resolutions

WHEREAS, oil and natural gas exploration and operations in NYS are regulated by the NYS Department of Environmental Conservation Oil, Gas and Solution Mining Law (OGSML), which has the authority to permit and define when and where such operations occur, and that such authority includes the right of NYS to impose forced pooling (“Compulsory Integration”), which compels a property owner to cede land use to a well unit regardless of whether said landowner wants that land used for that purpose, and that landowners may also lose control of their property through eminent domain proceedings to construct federally regulated pipelines and other shale gas infrastructure, and that residential properties with industrial operations may also forfeit lending options, be subject to substantial liability, and loss of value that upon reassessment would impact the Town's tax base; and

WHEREAS, the New York Environmental Conservation Law (ECL) Section 23-0303, preempts towns from regulating land use of Gas and Oil Mining in NYS; and

WHEREAS, the NYS Constitution provides remedy for such preemption by granting significant land use authority to local government in the Municipal Home Rule Law (MHRL), and that local land use amendments using the authority of MHRL to prohibit unwanted industrial operations has been tested in NYS lower courts and upheld in NYS Court of Appeals, and that exercise of MHRL gives a local government the most independent control over its land use; and

WHERAS, shale gas development operations in the Town of Westerlo would have significant industrializing impacts on our rural/agricultural community character; and

WHEREAS, such operations may adversely affect the health, safety and welfare of the community, such concern being documented by many sources, including by the NYS Department of Health in its review of HVHF for Shale Gas Development impacts to Public Health; and

WHEREAS, such operations are incompatible with the Westerlo Comprehensive Plan;

NOW, THEREFORE, BE IT RESOLVED THAT THE TOWN BOARD OF THE TOWN OF

138 Actionable Items: Sample Town Board Resolutions

WESTERLO, APPROVES THAT ACTION MUST BE TAKEN TO ACCOMPLISH THE GOALS OF MAINTAINING AND SUPPORTING THE RURAL/AGRICULTURAL CHARACTER OF THE TOWN, PROMOTING THE HEALTH, SAFETY AND WELFARE OF THE COMMUNITY, AND SUPPORTING THE KEY OBJECTIVES OF THE COMPREHENSIVE PLAN:

BE IT FURTHER RESOLVED that the Town will engage expert legal counsel, experienced in Municipal Home Rule Law, to review the Town's Comprehensive Plan and Zoning Law, and any other relevant documentation, for the purpose of constructing a carefully customized land use amendment to the Town Zoning Law in order to address shale gas development impacts to the Town; and

BE IT FURTHER RESOLVED that such carefully constructed amendment be reviewed by the Town Board, the Town Attorney, and the Public, and considered for adoption into the Town Zoning Law; and

BE IT FURTHER RESOLVED that additional Home Rule authority is necessary to ensure that the tax burden is not increased or passed on to the residents of the Town due to impacts of the natural gas industry as it relates to impacts on infrastructure.

Date Passed: ______

Certification: ______Kathleen Spinnato Town Clerk

139 Actionable Items: Sample Town Board Resolutions

11.2 Resolution #2: Create an Economic Development Team

RESOLUTION TO CREATE AN ECONOMIC DEVELOPMENT TEAM TO EVALUATE OPPORTUNITIES AND RECOMMEND ACTIONS CONSISTENT WITH THE TOWN'S RURAL/AGRICULTURAL CHARACTER AND WITH THE KEY OBJECTIVES OF THE WESTERLO COMPREHENSIVE PLAN

WHEREAS, the Town of Westerlo is a rural/agricultural and a Right to Farm community; and

WHEREAS, a stronger local economy and an innovative relationship to the wider economy, can give Westerlo residents, and future generations, improved economic opportunities; and

WHEREAS, a stronger local economy would give the Town better immunity to pressures that threaten our rural/agricultural community character and the health and safety of our residents; and

WHEREAS, a stronger local economy would provide more financial support for Town services; and

WHEREAS, two of the key objectives of The Comprehensive Plan relate to economic development:

• Improve and expand municipal infrastructure to support new development and encourage state of the art telecommunications infrastructure to spark business development and technology growth. (Note: Article 17 Section of the Local Law #1 of 1989- Wireless Communications Facilities) , and

• Promote commercial expansion, niche retail and specialty farming, along with small technology companies, which will flourish with enhanced telecommunications infrastructure:

NOW, THEREFORE, BE IT RESOLVED THAT THE TOWN BOARD OF THE TOWN OF

140 Actionable Items: Sample Town Board Resolutions

WESTERLO, APPROVES THAT ACTION BE TAKEN TO CREATE AN ECONOMIC DEVELOPMENT TEAM (EDT) TO ACCOMPLISH THE GOALS OF IMPROVED OPPORTUNITIES FOR RESIDENTS AND FUTURE GENERATIONS, AND TO SUPPORT THE ECONOMIC DEVELOPMENT OBJECTIVES OF THE COMPREHENSIVE PLAN:

BE IT FURTHER RESOLVED that the Economic Development Team be comprised of seven volunteers of diverse backgrounds and points-of-view, including at least three people unaffiliated with Town government; and

BE IT FURTHER RESOLVED that the Economic Development Team be non-partisan; and

BE IT FURTHER RESOLVED that the Economic Development Team produce timely and actionable recommendations , including, but not limited to:

• Identifying business opportunities and supportive infrastructure that is compatible with our rural/agricultural character

• Grants

• Improving community involvement and volunteerism

• Attracting new residents

• Improving opportunities and participation of young people

• Improving tax base

• Partnership with other Hilltown communities for better regional opportunities and representation in Albany County

Date Passed: ______

Certification: ______Kathleen Spinnato Town Clerk

141 APPENDIX: Shale Gas Development - Overview of HVHF

12. APPENDIX: Shale Gas Development - Overview of HVHF

High-volume horizontal hydraulic fracturing (HVHF or HVHHF) is the technique used to extract natural gas (or oil) from shale rock. It is the technology of horizontal drilling and fracturing of shale layers used in “unconventional” HVHF that distinguishes it from the “conventional” vertical drilling of the past.

Source for the rest of this section: verbatim excerpts from a U.S. Department of Energy report:193 (Source text not italicized.)

FIGURE 1: Typical Configuration for a Horizontally Drilled, Hydraulically Fractured Shale Gas Well

193 Clark, C. et al, “Hydraulic Fracturing and Shale Gas Production: Technology, Impacts and Regulations”, 2013, Agronne National Laboratory, U.S. Department of Energy, U of Chicago, Chicago, IL

142 APPENDIX: Shale Gas Development - Overview of HVHF

12.1 Introduction

Hydraulic fracturing is a key technique that has enabled the economic production of natural gas from shale deposits, or plays.

Unlike conventional mineral formations containing natural gas deposits, shale has low permeability, which naturally limits the flow of gas or water. In shale plays, natural gas is held in largely unconnected pores and natural fractures. Hydraulic fracturing is the method commonly used to connect these pores and allow the gas to flow. The process of producing natural gas from shale deposits involves many steps in addition to hydraulic fracturing, all of which involve potential environmental impacts. Hydraulic fracturing (commonly referred to as “fracking” or “fracking”) is often misused as an umbrella term to include all of the steps involved in shale gas production. These steps include road and well pad construction, drilling the well, casing, perforating, hydraulic fracturing, completion, production, abandonment, and reclamation.

12.2 Road and Well Pad Construction A well requires a prepared area on the surface, called a pad, that provides a stable base for a drilling rig, retention ponds, water storage tanks, loading areas for water trucks, associated piping, and pumping and control trucks. After well completion, the pad serves as the location of the wellhead and other equipment. Preparing a pad involves clearing and leveling several acres of land. Its size depends on the depth of the well and the number of wells to be drilled on the site. In addition to land disturbed for building the well pad, three to four acres are disturbed per pad for roads and utilities to service the pad.

12.3 Drilling Most shale gas resources are located at depths of 6,000 feet or more below ground level, and can be relatively thin (for example, the Marcellus shale formation is between 50–200 feet thick depending on location). The efficient extraction of gas from such a thin layer of rock requires drilling horizontally through the shale as shown in Figure 1. This is accomplished by drilling vertically downward until the drill bit reaches a distance of around 900 feet from the shale formation. At this point, a directional drill is used to create a gradual 90-degree curve, so that the wellbore becomes horizontal as it reaches optimal depth within the shale. The wellbore then follows the shale formation horizontally for 5,000 feet or more (Rotman 2009). Multiple horizontal wells accessing different parts of the shale formation can be drilled from a single pad. Thus, horizontal drilling reduces the footprint of these operations by enabling a large area of shale to be accessed from a single pad.

12.4 Casing and Perforating At various stages in the drilling process, drilling is stopped and steel casing pipe is installed in

143 APPENDIX: Shale Gas Development - Overview of HVHF the wellbore. Cement is pumped into the annulus, or void space between the casing and the surrounding mineral formation. After the wellbore reaches a depth below the deepest freshwater aquifer, casing and cement are installed to protect the water from contamination due to the drilling process. Additional casing and cementing along the entire wellbore occurs after the well has reached its full horizontal length. This process is intended to prevent leakage of natural gas from the well to the rock layers between the shale formation and the surface, as well as to prevent the escape of natural gas to the surface through the annulus. The casing surrounding the horizontal section of the well through the shale formation is then perforated using small explosives to enable the flow of hydraulic fracturing fluids out of the well into the shale and the eventual flow of natural gas out of the shale into the well.

12.5 Hydraulic Fracturing and Completion Even though the well casing is perforated, little natural gas will flow freely into the well from the shale. Fracture networks must be created in the shale to allow gas to escape from the pores and natural fractures where it is trapped in the rock. This is accomplished through the process of hydraulic fracturing. In this process, typically several million gallons of a fluid composed of 98– 99.5% water and proppant (usually sand) is pumped at high pressure into the well (GWPC and ALL 2009). The rest of the fracking fluid (0.5–2% by volume) is composed of a blend of chemicals, often proprietary, that enhance the fluid’s properties. These chemicals typically include acids to “clean” the shale to improve gas flow, biocides to prevent organisms from growing and clogging the shale fractures, corrosion and scale inhibitors to protect the integrity of the well, gels or gums that add viscosity to the fluid and suspend the proppant, and friction reducers that enhance flow and improve the ability of the fluid to infiltrate and carry the proppant into small fractures in the shale (GWPC and ALL 2009). This fluid pushes through the perforations in the well casing and forces fractures open in the shale—connecting pores and existing fractures and creating a pathway for natural gas to flow back to the well. The proppant lodges in the fractures and keeps them open once the pressure is reduced and the fluid flows back out of the well. Approximately 1,000 feet of wellbore is hydraulically fractured at a time, so each well must be hydraulically fractured in multiple stages, beginning at the furthest end of the wellbore. Cement plugs isolate each hydraulic fracture stage and must be drilled out to enable the flow of natural gas up the well after all hydraulic fracturing is complete. Once the pressure is released, fluid (commonly referred to as flowback water) flows back out the top of the well. The fluid that is recovered not only contains the proprietary blend of chemicals present in the hydraulic fracturing fluid, but may also contain chemicals naturally present in the reservoir, including hydrocarbons, salts, minerals, and naturally occurring radioactive materials (NORM) that leach into the fluid from the shale or result from mixing of the hydraulic fracturing fluid with brine (e.g. salty water) already present in the formation. The chemical composition of the water produced from the well varies significantly according to the formation and the time after well completion, with early flowback water resembling the hydraulic fracturing fluid but later converging on properties more closely resembling the brine naturally present in the formation.

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In many cases, flowback water can be reused in subsequent hydraulic fracturing operations; this depends upon the quality of the flowback water and the economics of other management alternatives. Flowback water that is not reused is managed through disposal. While past disposal options sometimes involved direct dumping into surface waters or deposit at ill equipped wastewater treatment plants, most disposal now occurs at Class II injection wells as regulated by the U.S. Environmental Protection Agency’s (EPA’s) Underground Injection Control Program. These injection wells place the flowback water in underground formations isolated from drinking water sources.

12.6 Production, Abandonment and Reclamation During production, gas that is recovered from the well is sent to small-diameter gathering pipelines that connect to larger pipelines that collect gas from a network of production wells. Because large-scale shale gas production has only been occurring very recently, the production lifetime of shale gas wells is not fully established. Although there is substantial debate on the issue, it is generally observed that shale gas wells experience quicker production declines than conventional natural gas production. In the Fayetteville play in north-central Arkansas, it has been estimated that half of a well’s lifetime production, or estimated ultimate recovery, occurs within its first five years (Mason 2011). Once a well no longer produces at an economic rate, the wellhead is removed, the wellbore is filled with cement to prevent leakage of gas into the air, the surface is reclaimed (either to its pre-well state or to another condition agreed upon with the landowner), and the site is abandoned to the holder of the land’s surface rights.

12.7 Potential Environmental Impacts Associated with Shale Gas Development

Environmental impacts associated with shale gas development occur at the global and local levels. These include impacts to climate change, local air quality, water availability, water quality, seismicity, and local communities.

12.7.1 Life-Cycle Greenhouse Gas (GHG) Emissions Natural gas has been referred to as a low-carbon fuel, as its combustion produces significantly less carbon dioxide emissions than coal and petroleum-based fuels. However, to understand the implications for climate change, one must look at not only the greenhouse gas (GHG) emissions from combustion in a vehicle or power plant but also those from production activities. For natural gas, the primary concern is leakage and venting throughout the supply chain, as methane (CH4), a potent greenhouse gas, is its primary constituent. In 2011, the EPA doubled its estimates of CH4 leakage for the U.S. natural gas industry, in part because of the inclusion of emissions from shale gas production for the first time (EPA 2011a). One key activity that can produce significant CH4 emissions is shale gas well completions. When

145 APPENDIX: Shale Gas Development - Overview of HVHF flowback water is removed from the well prior to the beginning of gas production, natural gas can be vented to the atmosphere over the course of several days. Periodically, a shale gas well may need a workover to improve gas flow, which can involve hydraulically fracturing the well again, and thus further CH4 emissions can occur if these operations are not controlled. In reality, natural gas operators often take steps to limit these emissions. The EPA’s Natural Gas STAR program, an industry and government partnership to reduce CH4 emissions, has been reporting significant (approximately 50%) emission reductions through the use of flaring and reduced emissions completions (RECs), which allow them to capture gas that otherwise would have been vented to the atmosphere (Burnham et al. 2012). However, the estimates of savings lack transparency, as they are highly aggregated to protect confidential business information. Another area of uncertainty when estimating the impacts of these emissions is projecting future well productivity, which is an important factor in life-cycle calculations. Because shale gas production is so new, these projections range widely, and if wells are less productive than the industry projects, then the emissions impacts of well completions will be of greater importance.

Several studies have been released that have estimated the life-cycle GHG emissions of shale gas; however, results have varied due to differences in methodology and data assumptions (Howarth et al. 2011, Skone et al. 2011, Jiang et al. 2011, Burnham et al. 2012). Argonne researchers estimated a base case leakage rate for large-scale shale gas of 2.0% over the entire life cycle and 1.2% for production activities (Burnham et al. 2012). The EPA does not explicitly examine shale gas leakage, rather examines the entire natural gas industry; however, previous EPA estimates for natural gas leakage prior to large-scale shale gas production were 1.4% for the Local Air Pollution life cycle and 0.4% for the production phase (EPA 2011a, Kirchgessner et al. 1997). While the estimated leakage rate has increased significantly from previous estimates for various activities associated with production, those for other stages such as transmission and distribution have declined due to replacement of older pipelines, thereby reducing the overall impact. On the other hand, Cornell researchers estimated a base case leakage rate for shale gas of 5.8% for the life cycle; however, they do not account for technologies that capture vented CH4 and include several data points that likely overestimate emissions, such as using Russian pipeline information in place of U.S. data (Howarth et al. 2011).

Using current leakage estimates for large-scale production, natural gas CH4 emissions account for approximately 15% of the total life-cycle GHG emissions on a 100-year time scale and the relative benefits of natural gas depend on how it is ultimately used. For example, most studies show that natural gas power plants can provide approximately 30–50% reduction in GHG emissions, depending on the plant’s efficiency, as compared to a typical coal plant (Skone et al. 2011, Jiang et al. 2011, Burnham et al. 2012). For light-duty vehicles, use of compressed natural gas may provide nearly a 10% reduction in GHG emissions as compared to gasoline (Burnham et al. 2012). However, for heavy-duty natural gas vehicles using spark ignited engines, such as a transit bus, there may be no GHG benefit as compared to diesel vehicles, owing to the efficiency advantage of compression-ignition engines.

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12.7.2 Local Air Pollution Shale gas production activities can produce significant amounts of air pollution that could impact local air quality in areas of concentrated development. In addition to GHGs, fugitive emissions of natural gas can release volatile organic compounds (VOCs) and hazardous air pollutants (HAPs), such as benzene. Nitrogen oxides (NOx) are another pollutant of concern, as drilling, hydraulic fracturing, and compression equipment—typically powered by large internal combustion engines—produce these emissions.

Several state emission inventories have shown that oil and natural gas operations are significant sources of local air pollution (e.g., the 2008 Colorado emission inventory showed that they accounted for 48% of VOCs, 18% of NOx, and 15% of benzene) and that shale gas operations may lead to increased levels of ozone and HAPs near these areas (Wells 2012). However, uncertainty about the impacts of these emissions exists, as air quality is highly dependent on local conditions. For example, in some areas VOC emissions will not be the primary driver of ozone formation; therefore, detailed modeling is required to understand the impact of emissions on local air quality. In addition, while elevated levels of benzene emissions have been found near production sites, concentrations have been below health-based screening levels, and with little data on how these HAP emissions impact human health, further examination is needed (Alvarez 2012).

Another local air pollutant of growing concern is crystalline silica dust, which can be generated from the sand proppant. Silica dust can be generated in the mining and transporting of sand to the well site and in the process of moving and mixing sand into the hydraulic fracturing fluid on the well pad. Crystalline silica dust within the respirable size range (<4 microns) is considered a HAP and a carcinogen. In addition to an increased risk of lung cancer, exposure to crystalline silica can lead to a chronic, inflammatory lung disease called silicosis (Wisconsin Department of Natural Resources 2011). A recent field study of 11 different hydraulic fracturing sites in five different states by researchers at the National Institute for Occupational Safety and Health (NIOSH) found levels of crystalline silica that exceeded NIOSH recommended exposure limits (REL) in 79% of the samples and far exceeded the REL by a factor of 10 or more in 31% of the samples. The researchers concluded that existing safeguards may not be sufficiently protective of worker health and that additional safeguards should be put in place (Esswein et al. 2012).

12.7.3 Water Consumption Although water is used in several stages of the shale gas life cycle, the majority of water is typically consumed during the production stage. This is primarily due to the large volumes of water (2.3–5.5 million gallons) required to hydraulically fracture a well (Clark et al. 2011). Water in amounts of 190,000–310,000 gallons is also used to drill and cement a shale gas well during construction (Clark et al. 2011). After fracturing a well, anywhere from 5% to 20% of the original volume of the fluid will return to the surface within the first 10 days as flowback water. An additional volume of water, equivalent to anywhere from 10% to almost 300% of the injected volume, will return to the surface as produced water over the life of the well (Mantell 2010). It

147 APPENDIX: Shale Gas Development - Overview of HVHF should be noted that there is no clear distinction between so-called flowback water and produced water, with the terms typically being defined by operators based upon the timing, flow rate, or sometimes composition of the water produced. The rate at which water returns to the surface is highly dependent upon the geology of the formation. In the Marcellus play, operators recycle 95% of the flowback, whereas in the Barnett and Fayetteville plays, operators typically recycle 20% of the flowback. Water management and reuse are local issues and often depend upon the quality and quantity of water and the availability and affordability of management options. Over a 30- year life cycle, assuming a typical well is hydraulically fractured three times during that time period (EPA 2010), construction and production of shale gas typically consumes between 7,090,000 and 16,810,000 gallons of water per well. Once the gas is produced, it is processed, transported and distributed, and ultimately used. Water consumption occurs in each of these stages as well, with the most significant nonproduction consumption potentially occurring during end use. Although natural gas can be combusted directly with no additional water consumption, if the end use of the gas is a vehicle tank, it might be compressed via an electric compressor. The electricity for compression is associated with water consumption of 0.6–0.8 gallon per gasoline gallon equivalent (GGE), according to King and Webber (2011), making the total consumption for the vehicle life cycle 1.0– 2.5 gal/GGE depending upon location and the extent that flowback water is recycled. For comparison, vehicle life cycle water consumption associated with the use of conventional natural gas is between 0.9 and 1.1 gal/GGE, gasoline is between 2.6 and 6.6 gal/GGE, and corn ethanol is between 26 and 359 gal/GGE (Wu et al. 2011).

12.7.4 Water Quality Describing Concerns over water quality focus on potential drinking water contamination by methane or fluids from hydraulic fracturing activities. The possible pathways for this contamination include underground leakage from the wellbore to drinking water aquifers and improper disposal or accidental leakage of hydraulic fracturing fluids to surface water bodies. Owing to the depth of most shale plays, it is unlikely that a credible pathway (independent of the wellbore) exists for fluids to flow from the fractures within the shale through thousands of feet of overlaying rock into a drinking water aquifer. However, shallower shale deposits may be vulnerable to this direct connection, as is suggested by EPA’s ongoing groundwater investigation in Pavillion, Wyoming, where as little as 400 feet separated gas deposits from drinking water resources. For deep formations, contamination may occur due to defects in the wellbore. When the annulus between the well casing and surrounding geology is not adequately sealed during well installation, methane can migrate from the shale resource up the outside of the wellbore to shallow aquifers where it could dissolve in the drinking water. Another possible pathway for contamination is a defect in the casing at a shallow depth, allowing gas to flow from inside the wellbore to the aquifer. Faulty well construction appears to have caused one of the largest documented instances of water contamination, which occurred in Bradford County, Pennsylvania, after wells had been drilled but before any hydraulic fracturing took place (PADEP 2011). In addition to faulty well construction, Osborn et al. (2011) suggest that uncased, abandoned wells

148 APPENDIX: Shale Gas Development - Overview of HVHF may also provide pathways for methane migration to occur. The most obvious, and perhaps most easily prevented, pathway for contamination is intentional dumping or accidental spilling of flowback water on the surface. A common cause of accidental spillage is overflows from retention ponds during major rain events. Contaminants in flowback water from the mineral formation, such as NORM, or from additives to the hydraulic fracturing fluid can be a health concern when present in significant concentrations. EPA’s investigation into possible groundwater contamination at Dimock, Pennsylvania, was launched out of concern over such toxic substances. While there are no Federal drinking water standard limits for methane, it is nevertheless a hazard in water because at sufficient concentrations it can volatilize and collect in houses, which can lead to suffocation or serve as a fuel for fire and explosions.

12.7.5 Induced Seismicity Disposal of flowback water from hydraulic fracturing depends upon the availability of suitable injection wells. For example, the limited availability of suitable geology in Pennsylvania has led to hauling flowback water to Ohio for injection. The increased injection activity has been linked to seismic events or earthquakes, according to the Ohio Department of Natural Resources (ODNR 2012). Additional studies have indicated that injection activities in Arkansas have been linked to nearby earthquakes (Horton 2012). Injection activities have been halted in associated wells in Arkansas and Ohio. According to ODNR, a properly located injection well will not cause earthquakes. A number of factors must be present to induce seismic events at a disposal site. In order for earthquakes to occur, a fault must exist nearby and be in a near-failure state of stress. The injection well must have a path of communication to the fault, and the fluid flow rate in the well must be at a sufficient quantity and pressure for a long enough time to cause failure along the fault or system of faults. A recent National Research Council study concludes that the majority of disposal wells for hydraulic fracturing wastewater do not pose a hazard for induced seismicity. This report also concludes that the process of hydraulic fracturing itself does not pose a high risk for inducing felt seismic events (NRC 2012).

12.7.6 Community Impacts Oil and gas development is an industrial process and as such is not immune to the types of local impacts that most industrial activities tend to share. The process requires heavy equipment, including hundreds to thousands of truck trips to deliver water and chemicals to perform the hydraulic fracturing process, and many more to remove the flowback water generated by the process. This intense traffic places enormous stress on local roads, which may not have been built to handle heavy truck traffic, and can lead to congestion, which can become a source of frustration for local citizens. The large equipment used to drill and hydraulically fracture a well can also be noisy and visually unattractive, especially when in close proximity to occupied residences. Furthermore, this activity can have a negative impact upon local property values, especially in residential areas, owing to a combination of real and perceived risks and impacts.

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However, some aspects of shale gas development differ from those of other industrial processes. Intense trucking near well pads often occurs over a brief period on rural roads. This traffic is heavy enough to cause significant road degradation, but unlike a road to a stationary industrial facility that will support traffic over a long period of time, these roads are subject to heavy traffic for only a brief period, making road upgrades a difficult decision for local or state governments.

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Soraghan, M., 2012, “BLM proposes more disclosure than most states,” Greenwire, E&E Publishing, http://www.eenews.net/Greenwire/2012/02/06/archive/1? terms=BLM+proposes+more+disclosure+than+most+states, accessed April 23, 2012.

Sullivan, C., 2012, “Vt. House OKs 3-year fracking ban,” Greenwire, E&E Publishing, http://www.eenews.net/Greenwire/2012/02/03/archive/15?terms=Vt.+House+OKs+3- year+fracking+ban, accessed April 23, 2012.

Veil, J.A., 2010, “Water Management Technologies Used by Marcellus Shale Gas Producers,” ANL/EVS/R-10/3, prepared for the U.S. Department of Energy, National Energy Technology Laboratory, July, 59 pp. Available at http://www.ead.anl.gov/pub/dsp_detail.cfm?PubID=2537.

Wells, D., 2012, Colorado 2008 Emissions Inventory, Colorado Department of Public Health and Environment, Denver, CO.

Wisconsin Department of Natural Resources, 2011, “Report to the Natural Resources Board: Silica Study”, AM-407, August. Available at: http://dnr.wi.gov/air/pdf/finalsilicareport.pdf.

Wu, M., Mintz, M., Wang, M., Arora, S., and Chiu, Y., 2011, Consumptive Water Use in the Production of Ethanol and Petroleum Gasoline – 2011 Update, ANL/ESD/09-1, Argonne National Laboratory, Argonne, IL.

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Zuckerman, L., 2012, “Groups seek fuller disclosure of fracking in Wyoming,” Reuters, http://www.reuters.com/article/2012/03/27/us-usa-fracking- wyomingidUSBRE82Q02F20120327, accessed May 4, 2012.

12.8 NYSDEC Maps of Shale Gas Reserves in NY – Marcellus

The following set of maps of Marcellus and Utica shales are from the NYSDEC Revised DSGEIS.194

194 NYS Revised DSGEIS http://www.dec.ny.gov/energy/75370.html

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156 APPENDIX: Shale Gas Development - Overview of HVHF

12.9 NYSDEC Maps of Shale Gas Reserves in NY – Utica

157 APPENDIX: Shale Gas Development - Overview of HVHF

158 APPENDIX: Shale Gas Development - Overview of HVHF

159 APPENDIX: SGD/HVHF Buildout - Infrastructure Expansion

13. APPENDIX: SGD/HVHF Buildout - Infrastructure Expansion

High-volume horizontal hydraulic fracturing (HVHF or HVHHF) well drilling is part of the production phase of Shale Gas Development. The development of US shale gas resources will require expansion of infrastructure assets ranging from roads and rails to pipelines and seaports to power-generation plants and ethane crackers, and more.195

13.1 Near the Well - Gathering Lines and Raw Gas Processing

Gathering lines are nearly always unregulated local (intrastate) pipelines that have limited (or no) Federal oversight. Inspectors are required to enforce local (usually state) codes. These pipelines are typically 6-20 inches in diameter and move the raw gas from the well to the transmission and distribution system. Processing facilities near the well usually remove water and higher-hydrocarbon liquids.

13.2 Midstream Processing

The gas is then moves though the pipeline to midstream processing, where it is further refined, and its components separated and generally split into two transmission and delivery systems: processed natural gas and Natural Gas Liquids (NGLs).

13.3 Interstate Pipelines

The following is a snapshot of an interactive map showing NYS natural gas infrastructure:196

195 Goellner, Jesse, Expanding the Shale Gas Infrastructure, August 2012, http://www.aiche.org/cap 196 You are Here Map, http://youareherenymap.org/

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161 APPENDIX: SGD/HVHF Buildout - Infrastructure Expansion

The following map shows the path of the proposed Constitution Pipeline, designed to move SGD/HVHF gas from Pennsylvania to the (significantly expanded) Iroquois Gas Company Compressor Station at Wright, NY, in Schoharie County (just over the border from Town of Knox):

Legend: • Yellow = 40 mile proposed study area • Orange = towns and counties with HVHF bans • Blue line = Proposed Constitution Pipeline route (approximately 100 miles in NY)

Transmission pipelines are generally interstate pipelines regulated by the federal government (Federal Energy Regulatory Commission (FERC)). They are typically 20-48 inches in diameter and take processed gas from processing facilities to local distribution networks or to seaports for export.

SGD/HVHF transmission pipeline expansion is already in progress in NY.

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New and existing right-of-ways for Iroquois Gas Pipeline (IGP) and Tennessee Gas Pipeline (TGP) are being explored in our area for co-location of additional high-pressure, high-volume pipelines.

• The proposed new124-mile long Constitution Pipeline, currently under NYSDEC review, was designed move SGD/HVHF gas from Pennsylvania to a substantially expanded IGC compressor station in Wright, Schoharie County, which is just over the border to the town of Knox.

• IGP, which runs through Westerlo and connects to Wright, has announced its SoNo Project. This plan would reverse the direction of gas, currently flowing south from Canada to Wright, so that it would connect with the proposed Constitution pipeline at Wright and flow north to export SGD/HVHF gas to Canada and other foreign markets.

• The North East Direct (NED) project (TGP/Kinder Morgan) would also expand pipeline infrastructure in our area: The proposed Project includes two components: (1) the Supply Path Component of the Project which is comprised of the proposed Project facilities from Troy, Pennsylvania, to [IGC compressor station at] Wright, New York, and (2) the Market Path Component of the Project, which is comprised of the proposed Project facilities from Wright, New York, to Dracut, Massachusetts.197:

◦ The proposed Project pipeline facilities in New York consist of approximately 95 miles of new 30- inch-diameter pipeline,also planned to be generally co-located with the proposed Constitution Pipeline Project for a majority of its length, extending to Wright, New York...as discussed above), as well as approximately 53 miles of new 36-inch-diameter pipeline generally co-located, with Tennessee’s existing 200 Line pipeline and an existing utility corridor (referred to as the Wright to Dracut Pipeline Segment). A portion of the Wright to Dracut Pipeline Segment will be located in New York, and a portion will be located in Massachusetts, and New Hampshire … The approximately 53 miles of 36-inch- diameter pipe will be located within or directly adjacent to Tennessee’s existing pipeline ROW [right-of-way] and the existing utility corridor, to the extent practicable, feasible

197 NED RR 1_12-05-14_Public CLEAN.PDF, pages 14 - 18

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and in compliance with existing law. The New York pipeline facilities will be designed for a MAOP [maximum allowable operating pressure] and MOP of 1,460 psig, [pounds per square inch] except for up to approximately 10.2 miles of pipe leaving the Supply Path Tail Station which is designed for 1,600 psig.198

13.4 Compressor Stations

The U.S. interstate natural gas pipeline network relies on ...natural gas compressor stations to maintain the continuous flow of natural gas between supply area and consumers. Compressor stations are “pumping” facilities that advance the flow of natural gas. They are usually situated between 50 and 100 miles apart along the length of a natural gas pipeline system and are designed to operate on a nonstop basis. The average station is capable of moving about 700 million cubic feet (MMcf) of natural gas per day, while the largest can move as much as 4.6 billion cubic feet (Bcf) per day199.

According to the U.S. Energy Information Administration, most of the stations [for NED] consist of several compressors, scrubbers, filters and cooling facilities, emergency shutdown systems and a computerized flow control and dispatch system that is monitored by an off-site supervisory control system that manages and coordinates several related stations. After compression, the compressed natural gas goes to a cooling unit, and then is returned to the transmission line.

Most compressor stations are fueled by some of the natural gas flowing through the station, and compressor stations are equipped with emergency shutdown systems that can detect an unanticipated pressure drop, gas leak or other abnormal conditions, according to EIA. Mainline natural gas pipeline compressor stations (Figure 6) constitute a very significant portion of the infrastructure that makes up the national interstate natural gas pipeline network in the lower 48 States. Indeed, in 2005, the interstate natural gas pipelines that owned and/or operated mainline compressor stations reported plant costs or investment expenditures of more than $15 billion for compressor station equipment, second only to the $50 billion they reported as invested in natural gas transmission pipeline.23 (Interstate operators also reported investments of more than $1.7 billion in underground storage compressor equipment and $66 million in field and plant compressor equipment). 200

198 NORTHEAST ENERGY DIRECT PROJECT, DOCKET NO. PF14-22-000, DRAFT ENVIRONMENTAL REPORT, RESOURCE REPORT 1, GENERAL PROJECT DESCRIPTION, PUBLIC NED RR 1_12-05-14_Public REDLINED.PDF Pg. 19 199 Energy Information Administration, Office of Oil and Gas, November 2007 200 Energy Information Administration, Office of Oil and Gas, November 2007

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13.5 Valve Stations

Pipeline valve stations are located at intervals along the entire length of the line.

13.6 Liquified Natural Gas (LNG) Facilities

LNG Information adapted from: Answering Questions about Liquified Natural Gas (LNG)201

Liquified Natural Gas (LNG) is methane that is super-cooled to -259 degrees by a cryogenic process that converts natural gas to a liquid.

LNG facilities typically have their own power plants to supply the significant energy required to achieve this low temperature.

LNG storage tanks vent methane by design. The LNG tanks are insulated and maintain the -259 degree temperature through insulation, refrigeration, evaporation. As the LNG warms, some of it vaporizes and is vented out to maintain the proper temperature and to prevent explosions.

13.6.1 LNG Safety

If LNG spills into water, it explodes. If it spills on the ground, it turns into rapidly expanding clouds of vaporizing methane that can asphyxiate by displacing oxygen and flash-freeze human flesh.202 If ignited at the source, these vapors become flaming “pool fires” that burn hotter than other fuels and cannot be extinguished.203 Drifting in the wind, an ignitable vapor cloud can threaten large

201 Answering Questions about Liquified Natural Gas (LNG),A Fact Sheet by Americans Against Fracking, April 2014, LNG-final-primer.pdf 202 U.S. Deptartment of Transportation, Federal Transit Administration, Summary Assessment of the Safety, Health, Environmental and System Risks of Alternative Fuel, April 1999, http://ntl.bts.gov/lib/000/400/422/20021101_alt_fuel.pdf 203 Congressional Research Service, Liquefied Natural Gas (LNG) Infrastructure Security: Background and Issues for Congress, 9 Sept. 2003, http://www.energy.ca.gov/lng/documents/CRS_RPT_LNG_INFRA_SECURITY.PDF.

165 APPENDIX: SGD/HVHF Buildout - Infrastructure Expansion populations. Highly volatile LNG cannot be odorized, so there is no warning of a leak. … a deadly explosion in 1973 blew apart an empty lNG tank in Staten Island and killed 40 people.204

13.6.2 LNG Contaminants

• Refrigeration, venting, leas and flaring make LNG 30 times more energy intensive than conventional natural gas. The carbon footprint of LNG is at least at bad as coal, and, when used as a vehicle fuel, worse than diesel.205

• LNG plants discharge wastewater laced with mercury and toxic hydrocarbons.206...before the gas is liquified it must be purged of freezable benzene. In New Brunswick [Canada] in fall 2013, 7500 migrating songbirds were killed in a single night while flying over an LNG facility that was flaring off gas.207 In San Diego [CA] LNG vehicles have contributed to smog.208 In Australia, LNG plants are responsible for nitrogen dioxide emissions that exceed safe limits.209

13.6.3 LNG Security Risks

LNG tanks and ships are terrorist targets....In its 2008 report, Liquified Natural Gas (LNG) Infrastructure Security, the Congressional Research Service warned, “LNG infrastructure is inherently hazardous and potentially attractive to terrorists...Local officials have challenged numerous LNG infrastructure proposals on the grounds that they may represent an unacceptable risk to the public.” If an LNG tanker ship lost ten percent of its cargo and the resulting three million gallon spill of LNG ignited, the flaming vapor cloud could extend for three miles – and burn human flesh a mile beyond that. LNG ships and terminals require security zones, gunboat escorts, and

204 Paulsen, K, “40 Years Ago: Staten Island LNG Explosion Killed 40 Workers,” Staten Island Advance, 10 Feb. 2013. http://www.silive.com/news/index.ssf/2013/02/40_years_ago_today_staten_isla.html. 205 Jaramillo, P. et al., “Comparative Life-Cycle Air Emissions of Coal, Domestic Natural Gas, LNG, and SNG for Electricity Generation,” Env. Science & Tech. 41 (2007): 6290-6296, http://pubs.acs.org/doi/abs/10.1021/es063031o; A.R. Brandt et al., “Methane Leaks from North American Natural Gas Systems,” Science 342 (Feb. 2014): 733-35. https://www.sciencemag.org/content/343/6172/733.summary. 206 International Finance Corporation, “Environmental, Health, and Safety Guidelines for Liquefied Natural Gas (LNG) Facilities,” 30 April 2007, http://www.ifc.org/wps/wcm/connect/87e7a48048855295ac04fe6a6515bb18/Final%2B- %2BLNG.pdf?MOD=AJPERES&id=1323161924903. 207 CBC News, “7,500 Song Birds Killed at Canaport Gas Plant in Saint John,” 18 Sept. 2013. http://www.cbc.ca/news/canada/newbrunswick/7-500-songbirds-killed-at-canaport-gas-plant-in-saint-john- 1.1857615. 208 ABC News, “Pollution Fears Aired Over Curtis Island LNG Plant Approval,” 8 Oct. 2013, http://www.abc.net.au/news/2013-10-08/pollution-fears-aired-over-curtis-island-lng-plant-approval/5008422; Soto, O.R.,“Gas From Afar Pollutes Here, Critics Say – County Officials Concerned that Use of LNG Will Lead to More Smog in Region,” San Diego Union-Tribune, 13 Jan. 2011. 209 Gramenz,, E. “Pollution Fears Aired Over Curtis Island LNG Plant Approval,” ABC News, 8 Oct. 2013. http://www.abc.net.au/news/2013-10-08/pollution-fears-aired-over-curtis-island-lng-plant-approval/5008422

166 APPENDIX: SGD/HVHF Buildout - Infrastructure Expansion intense surveillance.210

13.6.4 The Relationship Between LNG and SGD/HVHF

LNG facilities encourages fracking by creating storage for the glut of gas that fracking has created, by enabling export, and by driving up prices and profit margins.211 The gas industry regards fracking and LNG as intimately related.212 LNG is fracked gas made liquid.

13.7 Compressed Natural Gas (CNG)

CNG is used as a vehicle fuel. Compressed Natural Gas or CNG is stored on the vehicle in high-pressure tanks - 20 to 25 Mpa (200 to 250 bar, or 3,000 to 3,600 psi). Natural gas consists mostly of methane and is drawn from gas wells or in conjunction with crude oil production. As delivered through the pipeline system, it also contains hydrocarbons such as ethane and propane as well as other gases such as nitrogen, helium, carbon dioxide, sulphur compounds, and water vapour. A sulphur-based odourant is normally added to CNG to facilitate leak detection. Natural gas is lighter than air and thus will normally dissipate in the case of a leak.213

CNG is a readily available alternative to gasoline that’s made by compressing natural gas to less than 1% of its volume at standard atmospheric pressure. Consisting mostly of methane, CNG is odorless, colorless and tasteless. It's drawn from domestically drilled natural gas wells or in

210 Council on Foreign Relations, “Liquefied Natural Gas: A Potential Terrorist Target? 27 Feb. 2006. http://www.cfr.org/naturalgas/liquefied-natural-gas-potential-terrorist-target/p9810; CRS Report for Congress, Liquefied Natural Gas (LNG) Infrastructure Security: Background and Issues for Congress, 9 Sept. 2003. https://www.hsdl.org/?view&did=486464; Sierra Club, Oregon Chapter, “Stop Liquefied Natural Gas.” http://oregon.sierraclub.org/goals/lng.asp; U.S. Government Accountability Office, “Maritime Security: Public Safety Consequences of a Terrorist Attack on a Tanker Carrying Liquefied Natural Gas Need Clarification,” GAO-07- 16, 22 Feb. 2007. http://www.gao.gov/products/GAO-07-316. 211 Klein, N,“Why US Fracking Companies are Licking Their Lips Over Ukraine,” The Guardian, 10 April 2014. http://www.theguardian.com/commentisfree/2014/apr/10/us-fracking-companies-climate-change-crisis-shock- doctrine 212 Kashi,, D, “Fracking Gas Boom in US: “How New England Seeks US LNG Exports to Help Lower Natural Gas Prices,” International Business Times, 1 Oct. 2013. http://www.ibtimes.com/fracking-gas-boom-us-how-england- seeks-us-lng-exports-helplower-natural-gas-prices-1413186. 213 Alternative Fuel Systems Inc., http://www.afsglobal.com/faq/gas-comparisons.html

167 APPENDIX: SGD/HVHF Buildout - Infrastructure Expansion conjunction with crude oil production.214

13.8 Liquid Propane Gas (LPG)

Liquefied Petroleum Gas or LPG (also called Autogas) consists mainly of propane, propylene, butane, and butylene in various mixtures. It is produced as a by-product of natural gas processing and petroleum refining. The components of LPG are gases at normal temperatures and pressures. One challenge with LPG is that it can vary widely in composition, leading to variable engine performance and cold starting performance. At normal temperatures and pressures, LPG will evaporate. Because of this, LPG is stored in pressurised steel bottles. Unlike natural gas, LPG is heavier than air, and thus will flow along floors and tend to settle in low spots, such as basements. Such accumulations can cause explosion hazards, and are the reason that LPG fuelled vehicles are prohibited from indoor parkdes in many jurisdictions.215

214 http://www.cngnow.com/what-is-cng/Pages/default.aspx 215 Alternative Fuel Systems Inc., http://www.afsglobal.com/faq/gas-comparisons.html

168 APPENDIX: HVHF Well Additives and Hazardous Waste

14. APPENDIX: HVHF Well Additives and Hazardous Waste

14.1 SGD/HVHF – What goes down the well?

14.1.1 Water 2-4 Million gallons of water are used for each HVHF operation

14.1.2 Proppants Proppants are used to prop open the fractures. The most common used proppant is sand. Sand mining and transportation for SGD/HVHF have had significant impacts in some areas of the country.216 The health of some industry workers have been affected by silicosis as a result of inhaling fine silica dust from sand.217

14.1.3 Chemicals

HVHF Additives Used in the United States 218 :

In the United States, about 750 compounds have been listed as additives for hydraulic fracturing in a report to the US Congress in 2011 after originally being kept secret for "commercial reasons"[1],[2] The following is a partial list of the chemical constituents in additives that are used or have been used in fracturing operations, as based on the report of the New York State Department of Environmental Conservation, some are known to be carcinogenic[3] [and endocrine disruptors].

In the UK only 'Non-Hazardous' chemicals are permitted for fracturing fluids by the Environment Agency. All chemicals have to be declared publicly and, increasingly, food additive based chemicals are available to allow fracking to take place safely.[4]

A subset of these additives, which are necessary for the extraction process, include:

216 Minnesota Department of Transportation,, http://www.dot.state.mn.us/frac/ (Fall 2012 measurement)? 217 https://www.osha.gov/dts/hazardalerts/hydraulic_frac_hazard_alert.ht 218 Wikipedia, http://www.ask.com/wiki/List_of_additives_for_hydraulic_fracturing? (See References at end of table)

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◦ acids to dissolve minerals and open up cracks in the rock

◦ biocides to kill bacteria and prevent corrosion

◦ gels and other agents to keep the fluid at the right level of viscosity at different temperatures

◦ substances to prevent clays from swelling or shifting

◦ distillates to reduce friction

◦ acids to limit the precipitation of metal oxides

Table of HVHF Chemical Components (from Wikipedia source cited: not italicized))

CAS Number Chemical Constituent 2634-33-5 1,2-Benzisothiazolin-2-one / 1,2-benzisothiazolin-3-one 95-63-6 1,2,4-trimethylbenzene 123-91-1 1,4-Dioxane .3452-07-1. 1-eicosene 629-73-2 1-hexadecene 112-88-9 1-octadecene 1120-36-1 1-tetradecene 10222-01-2 2,2 Dibromo-3-nitrilopropionamide, a biocide 27776-21-2 2,2'-azobis-{2-(imidazlin-2-yl)propane}-dihydrochloride 73003-80-2 2,2-Dibromomalonamide 15214-89-8 2-Acrylamido-2-methylpropane sulphonic acid sodium salt polymer 46830-22-2 2-acryloyloxyethyl(benzyl)dimethylammonium chloride 52-51-7 2-Bromo-2-nitro-1,3-propanediol 111-76-2 2-Butoxy ethanol 1113-55-9 2-Dibromo-3-Nitriloprionamide (2-Monobromo-3-nitriilopropionamide) 104-76-7 2-Ethyl Hexanol 67-63-0 2-Propanol / Isopropyl Alcohol / Isopropanol / Propan-2-ol 26062-79-3 2-Propen-1-aminium, N,N-dimethyl-N-2-propenyl-chloride, homopolymer 03/06/03 2-propenoic acid, homopolymer, ammonium salt 25987-30-8 2-Propenoic acid, polymer with 2 p-propenamide, sodium salt / Copolymer of acrylamide and sodium acrylate

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CAS Number Chemical Constituent 71050-62-9 2-Propenoic acid, polymer with sodium phosphinate (1:1) 66019-18-9 2-propenoic acid, telomer with sodium hydrogen sulfite 107-19-7 2-Propyn-1-ol / Propargyl alcohol 51229-78-8 3,5,7-Triaza-1-azoniatricyclo[3.3.1.13,7]decane, 1-(3-chloro-2-propenyl)- chloride 115-19-5 3-methyl-1-butyn-3-ol 127087-87-0 4-Nonylphenol Polyethylene Glycol Ether Branched / Nonylphenol ethoxylated / Oxyalkylated Phenol 64-19-7 Acetic acid 68442-62-6 Acetic acid, hydroxy-, reaction products with triethanolamine 108-24-7 Acetic Anhydride 67-64-1 Acetone .79-06-1. Acrylamide 38193-60-1 Acrylamide - sodium 2-acrylamido-2-methylpropane sulfonate copolymer 25085-02-3 Acrylamide - Sodium Acrylate Copolymer or Anionic Polyacrylamide 69418-26-4 Acrylamide polymer with N,N,N-trimethyl-2[1-oxo-2-propenyl]oxy Ethanaminium chloride 15085 -02-3 Acrylamide-sodium acrylate copolymer 68551-12-2 Alcohols, C12-C16, Ethoxylated (a.k.a. Ethoxylated alcohol) 64742-47-8 Aliphatic Hydrocarbon / Hydrotreated light distillate / Petroleum Distillates / Isoparaffinic Solvent / Paraffin Solvent / Napthenic Solvent 64743-02-8 Alkenes 68439-57-6 Alkyl (C14-C16) olefin sulfonate, sodium salt 9016-45-9 Alkylphenol ethoxylate surfactants 1327-41-9 Aluminum chloride 73138-27-9 Amines, C12-14-tert-alkyl, ethoxylated 71011-04-6 Amines, Ditallow alkyl, ethoxylated 68551-33-7 Amines, tallow alkyl, ethoxylated, acetates 1336-21-6 Ammonia 631-61-8 Ammonium acetate 68037-05-8 Ammonium Alcohol Ether Sulfate

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CAS Number Chemical Constituent 7783-20-2 Ammonium bisulfate 10192-30-0 Ammonium bisulfite 12125-02-9 Ammonium chloride 7632-50-0 Ammonium citrate 37475-88-0 Ammonium Cumene Sulfonate 1341-49-7 Ammonium hydrogen-difluoride 6484-52-2 Ammonium nitrate 7727-54-0 Ammonium Persulfate / Diammonium peroxidisulphate 1762-95-4 Ammonium Thiocyanate 7664-41-7 Aqueous ammonia 121888-68-4 Bentonite, benzyl(hydrogenated tallow alkyl) dimethylammonium stearate complex / organophilic clay 71-43-2 Benzene 119345-04-9 Benzene, 1,1'-oxybis, tetratpropylene derivatives, sulfonated, sodium salts 74153-51-8 Benzenemethanaminium, N,N-dimethyl-N-[2-[(1-oxo-2-propenyl)oxy]ethyl]-, chloride, polymer with 2-propenamide 10043-35-3 Boric acid 1303-86-2 Boric oxide / Boric Anhydride 71-36-3 Butan-1-ol 68002-97-1 C10 - C16 Ethoxylated Alcohol 68131-39-5 C12-15 Alcohol, Ethoxylated 10043-52-4 Calcium chloride 124-38-9 Carbon dioxide 68130-15-4 Carboxymethylhydroxypropyl guar 9012-54-8 Cellulase / Hemicellulase Enzyme 9004-34-6 Cellulose 10049-04-4 Chlorine dioxide 77-92-9 Citric Acid 94266-47-4 Citrus Terpenes 61789-40-0 Cocamidopropyl betaine 68155-09-9 Cocamidopropylamine Oxide

172 APPENDIX: HVHF Well Additives and Hazardous Waste

CAS Number Chemical Constituent 68424-94-2 Coco-betaine 7758-98-7 Copper(II) sulfate 31726-34-8 Crissanol A-55 14808-60-7 Crystalline Silica (Quartz) 7447-39-4 Cupric chloride dihydrate 1120-24-7 Decyldimethyl Amine 2605-79-0 Decyl-dimethyl Amine Oxide 3252-43-5 Dibromoacetonitrile 25340-17-4 Diethylbenzene 111-46-6 Diethylene glycol 22042-96-2 Diethylenetriamine penta (methylenephonic acid) sodium salt 28757-00-8 Diisopropyl naphthalenesulfonic acid 68607-28-3 Dimethylcocoamine, bis(chloroethyl) ether, diquaternary ammonium salt 7398-69-8 Dimethyldiallylammonium chloride 25265-71-8 Dipropylene glycol 139-33-3 Disodium Ethylene Diamine Tetra Acetate 5989-27-5 D-Limonene .123-01-3. Dodecylbenzene 27176-87-0 Dodecylbenzene sulfonic acid 42504-46-1 Dodecylbenzenesulfonate isopropanolamine 50-70-4 D-Sorbitol / Sorbitol 37288-54-3 Endo-1,4-beta-mannanase, or Hemicellulase 149879-98-1 Erucic Amidopropyl Dimethyl Betaine 89-65-6 Erythorbic acid, anhydrous 54076-97-0 Ethanaminium, N,N,N-trimethyl-2-[(1-oxo-2-propenyl)oxy]-, chloride, homopolymer 107-21 -1 Ethane-1,2-diol / Ethylene Glycol 9002-93-1 Ethoxylated 4-tert-octylphenol 68439-50-9 Ethoxylated alcohol 126950-60-5 Ethoxylated alcohol

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CAS Number Chemical Constituent 67254-71-1 Ethoxylated alcohol (C10-12) 68951-67-7 Ethoxylated alcohol (C14-15) 68439-46-3 Ethoxylated alcohol (C9-11) 66455-15-0 Ethoxylated Alcohols 84133-50-6 Ethoxylated Alcohols (C12-14 Secondary) 68439-51-0 Ethoxylated Alcohols (C12-14) 78330-21-9 Ethoxylated branch alcohol 34398-01-1 Ethoxylated C11 alcohol 61791-12-6 Ethoxylated Castor Oil 61791-29-5 Ethoxylated fatty acid, coco 61791-08-0 Ethoxylated fatty acid, coco, reaction product with ethanolamine 68439-45-2 Ethoxylated hexanol 9036-19-5 Ethoxylated octylphenol 9005-67-8 Ethoxylated Sorbitan Monostearate 9004-70-3 Ethoxylated Sorbitan Trioleate 64-17-5 Ethyl alcohol / ethanol 100-41-4 Ethyl Benzene 97-64-3 Ethyl lactate .9003-11-6. Ethylene Glycol-Propylene Glycol Copolymer (Oxirane, methyl-, polymer with oxirane) 75-21-8 Ethylene oxide 5877-42-9 Ethyloctynol 68526-86-3 Exxal 13 61790-12-3 Fatty Acids 68188-40-9 Fatty acids, tall oil reaction products w/ acetophenone, formaldehyde & thiourea 9043-30-5 Fatty alcohol polyglycol ether surfactant 7705-08-0 Ferric chloride 7782-63-0 Ferrous sulfate, heptahydrate 50-00-0 Formaldehyde 29316-47-0 Formaldehyde polymer with 4,1,1-dimethylethyl phenolmethyl oxirane

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CAS Number Chemical Constituent 153795-76- Formaldehyde, polymers with branched 4-nonylphenol, ethylene oxide and propylene oxide 7.75-12-7. Formamide 64-18-6 Formic acid 110-17-8 Fumaric acid 65997-17-3 Glassy calcium magnesium phosphate 111-30-8 Glutaraldehyde 56-81-5 Glycerol / glycerine 9000-30-0 Guar Gum 64742-94-5 Heavy aromatic petroleum naphtha 9025-56-3 Hemicellulase 7647-01-0 Hydrochloric Acid / Hydrogen Chloride / muriatic acid 7722-84-1 Hydrogen peroxide 79-14-1 Hydroxy acetic acid 35249-89-9 Hydroxyacetic acid ammonium salt 9004-62-0 Hydroxyethyl cellulose .5470-11-1. Hydroxylamine hydrochloride 39421-75-5 Hydroxypropyl guar 35674-56-7 Isomeric Aromatic Ammonium Salt 64742-88-7 Isoparaffinic Petroleum Hydrocarbons, Synthetic 64-63-0 Isopropanol 98-82-8 Isopropylbenzene (cumene) 68909-80-8 Isoquinoline, reaction products with benzyl chloride and quinoline 8008-20-6 Kerosene 64742-81-0 Kerosine, hydrodesulfurized 63-42-3 Lactose 64742-95-6 Light aromatic solvent naphtha 1120-21-4 Light Paraffin Oil 14807-96-6 Magnesium Silicate Hydrate (Talc) 1184-78-7 methanamine, N,N-dimethyl-, N-oxide

175 APPENDIX: HVHF Well Additives and Hazardous Waste

CAS Number Chemical Constituent 67-56-1 Methanol 68891-11-2 Methyloxirane polymer with oxirane, mono (nonylphenol) ether, branched 8052-41-3 Mineral spirits / Stoddard Solvent 141-43-5 Monoethanolamine 44992-01-0 N,N,N-trimethyl-2[1-oxo-2-propenyl]oxy Ethanaminium chloride 64742-48-9 Naphtha (petroleum), hydrotreated heavy 91-20-3 Naphthalene 38640-62-9 Naphthalene bis(1-methylethyl) 93-18-5 Naphthalene, 2-ethoxy- 68909-18-2 N-benzyl-alkyl-pyridinium chloride 68139-30-0 N-Cocoamidopropyl-N,N-dimethyl-N-2-hydroxypropylsulfobetaine 7727-37-9 Nitrogen, Liquid form 68412-54-4 Nonylphenol Polyethoxylate 121888-66-2 Organophilic Clays 64742-65-0 Petroleum Base Oil 64741-68-0 Petroleum naphtha 70714-66-8 Phosphonic acid, (phosphonomethyl)iminobis2,1- ethanediylnitrilobis(methylene)tetrakis-, ammonium salt 38000-41-7 Pine Oil 60828-78-6 Poly(oxy-1,2-ethanediyl), a-[3,5-dimethyl-1-(2-methylpropyl)hexyl]- w-hydroxy- 25322-68-3 Poly(oxy-1,2-ethanediyl), a-hydro-w-hydroxy / Polyethylene Glycol 24938-91-8 Poly(oxy-1,2-ethanediyl), -tridecyl--hydroxy- 51838-31-4 Polyepichlorohydrin, trimethylamine quaternized 56449-46-8 Polyethlene glycol oleate ester 62649-23-4 Polymer with 2-propenoic acid and sodium 2-propenoate 9005-65-6 Polyoxyethylene Sorbitan Monooleate 61791-26-2 Polyoxylated fatty amine salt 08/02/27 Potassium acetate 12712-38-8 Potassium borate 1332-77-0 Potassium borate

176 APPENDIX: HVHF Well Additives and Hazardous Waste

CAS Number Chemical Constituent 20786-60-1 Potassium Borate 584-08-7 Potassium carbonate 7447-40-7 Potassium chloride 590-29-4 Potassium formate 1310-58-3 Potassium Hydroxide 13709-94-9 Potassium metaborate 24634-61-5 Potassium sorbate 112926-00-8 Precipitated silica / silica gel 57-55-6 Propane-1,2-diol, or Propylene glycol 107-98-2 Propylene glycol monomethyl ether 68953-58-2 Quaternary Ammonium Compounds 62763-89-7 Quinoline,2-methyl-, hydrochloride 15619-48-4 Quinolinium, 1-(phenylmethl),chloride 7631-86-9 Silica, Dissolved 5324-84-5 Sodium 1-octanesulfonate .127-09-3. Sodium acetate 95371-16-7 Sodium Alpha-olefin Sulfonate 532-32-1 Sodium benzoate 144-55-8 Sodium bicarbonate 7631-90-5 Sodium bisulfate 7647-15-6 Sodium bromide 497-19-8 Sodium carbonate 7647-14-5 Sodium Chloride 7758-19-2 Sodium chlorite 3926-62-3 Sodium chloroacetate .68-04-2. Sodium citrate 6381-77-7 Sodium erythorbate / isoascorbic acid, sodium salt 2836-32-0 Sodium Glycolate 1310-73-2 Sodium Hydroxide 7681-52-9 Sodium hypochlorite

177 APPENDIX: HVHF Well Additives and Hazardous Waste

CAS Number Chemical Constituent 7775-19-1 Sodium Metaborate .8H2O 10486-00-7 Sodium perborate tetrahydrate 7775-27-1 Sodium persulfate .9003-04-7. Sodium polyacrylate 7757-82-6 Sodium sulfate 7772-98-7 Sodium thiosulfate 1338-43-8 Sorbitan Monooleate 57-50-1 Sucrose 5329-14-6 Sulfamic acid 112945-52-5 Synthetic Amorphous / Pyrogenic Silica / Amorphous Silica 68155-20-4 Tall Oil Fatty Acid Diethanolamine 8052-48-0 Tallow fatty acids sodium salt 72480-70-7 Tar bases, quinoline derivs., benzyl chloride-quaternized 68647-72-3 Terpene and terpenoids 68956-56-9 Terpene hydrocarbon byproducts 533-74-4 Tetrahydro-3,5-dimethyl-2H-1,3,5-thiadiazine-2-thione (a.k.a. Dazomet) 55566-30-8 Tetrakis(hydroxymethyl)phosphonium sulfate (THPS) 75-57-0 Tetramethyl ammonium chloride .64-02-8. Tetrasodium Ethylenediaminetetraacetate .68-11-1. Thioglycolic acid 62-56-6 Thiourea 68527-49-1 Thiourea, polymer with formaldehyde and 1-phenylethanone 108-88-3 Toluene 81741-28-8 Tributyl tetradecyl phosphonium chloride 68299-02-5 Triethanolamine hydroxyacetate 112-27-6 Triethylene glycol 52624-57-4 Trimethylolpropane, Ethoxylated, Propoxylated 150-38-9 Trisodium Ethylenediaminetetraacetate 5064-31-3 Trisodium Nitrilotriacetate 7601-54-9 Trisodium orthophosphate

178 APPENDIX: HVHF Well Additives and Hazardous Waste

CAS Number Chemical Constituent 57-13-6 Urea 25038-72-6 Vinylidene Chloride/Methylacrylate Copolymer 7732-18-5 Water 1330-20-7 Xylene Aliphatic acids Aliphatic alcohol glycol ether Alkyl Aryl Polyethoxy Ethanol Alkylaryl Sulfonate Aromatic hydrocarbons Aromatic ketones Oxyalkylated alkylphenol Petroleum distillate blend Polyethoxylated alkanol Polymeric Hydrocarbons Salt of amine-carbonyl condensate Salt of fatty acid/polyamine reaction product Sugar Surfactant blend

References for this section:

1. Nicholas Kusnetz (April 8, 2011). "Fracking Chemicals Cited in Congressional Report Stay Underground" . ProPublica. Retrieved July 11, 2011. 2. Chemicals Used in Hydraulic Fracturing (Report). Committee on Energy and Commerce U.S. House of Representatives. April 18, 2011. http://democrats.energycommerce.house.gov/sites/default/files/documents/Hydraulic- Fracturing-Chemicals-2011-4-18.pdf . 3. "Natural Gas Development Activities and High‐volume Hydraulic Fracturing" . New York State Department of Environmental Conservation. pp. 45–51. 4. (1) Nicholas Kusnetz (April 8, 2011). "Fracking Chemicals Cited in Congressional Report Stay Underground" . ProPublica. Retrieved July 11, 2011.

179 APPENDIX: HVHF Well Additives and Hazardous Waste

14.2 SGD/HVHF -What Comes Out of the Well?

14.2.1 Flowback Water with Chemicals, Concentrated Brine and Radioactive Materials

Chemicals

The same chemicals that go into a HVHF well come out in the flowback water that is evacuated to allow the gas to migrate out of the rock fractures.

Concentrated Salts (Brine)

Salt is concentrated in the flowback water (brine) at levels that are at least 3-10 times salter than ocean water219. HVHF brine contains not only concentrated salts, but also chemicals and concentrated radioactive material.

SGD companies sell HVHF brine for road deicing. Albany County legislature passed a law220 prohibiting its use on county roads, but it has been used in NYS in other localities.

Radioactive Materials

Drilling n the Marcellus Shale adds the component of radioactive materials Radium 226 and Radium 228, which are both soluble in water. Here's a description from Wikipedia:

Naturally Occurring Radioactive Material (NORM) is found in virtually all soil and rock on the earth’s surface. NORM can also be found in groundwater as the result of its contact with NORM bearing geologic formations. When human related activities disturb the soil, rock or groundwater and change the NORM from its original state, the NORM becomes TENORM (Technically Enhanced Naturally Occurring Radioactive Material). Drilling activity associated with shale gas development impacts or disturbs geologic formations that produce drill cuttings or rock that are

219 Hammer, R, and Van Briesen, J, NRDC Document, In Fracking’s Wake: New Rules are Needed to Protect Our Health and Environment from Contaminated Wastewater, D:12-05-A, May 2012 220 Local Law C of 2013: Prohibiting HVHF brine on Albany County roadways in waste water treatment plants in Albany County

180 APPENDIX: HVHF Well Additives and Hazardous Waste returned to the surface. In addition, some water from these deep formations that returns as part of the flowback and produced water from the well would also contain TENORM. Oil and gas TENORM and/or NORM is created in the production process, when produced fluids from reservoirs carry sulfates up to the surface of the Earth's crust. Some states, such as North Dakota, uses the term "diffuse NORM". Barium, calcium and strontium sulfates are larger compounds, and the smaller atoms, such as radium 226 and radium 228, can fit into the empty spaces of the compound and be carried through the produced fluids. As the fluids approach the surface, changes in the temperature and pressure cause the barium, calcium, strontium and radium sulfates to precipitate out of solution and form scale on the inside, or on occasion, the outside of the tubulars and/or casing. The use of tubulars in the production process that are NORM contaminated does not cause a health hazard if the scale is inside the tubulars and the tubulars remain downhole. Enhanced concentrations of the radium 226 and 228 and the daughter products such as lead-210 may also occur in sludge that accumulates in oilfield pits, tanks and lagoons. Radon gas in the natural gas streams concentrate as NORM in gas processing activities. Radon decays to lead-210, then to bismuth-210, polonium-210 and stabilizes with lead-206. Radon decay elements occur as a shiny film on the inner surface of inlet lines, treating units, pumps and valves associated with propylene, ethane and propane processing systems.221

221 wikipedia: http://www.ask.com/wiki/Naturally_occurring_radioactive_material

181 APPENDIX: PA DEP - Private Water Well Contamination

15. APPENDIX: PA DEP - Private Water Well Contamination

The following is from the PA DEP Report on Private Water Well Contamination222 cases:

Water Supply Determination Letters

The following list identifies cases where DEP determined that private water supply was impacted by oil and gas activities. The oil and gas activities referenced in the list below include operations associated with both conventional and unconventional drilling activities that either resulted in water dimunition event or an increase in constituents above background conditions. The list is intended to identify historic water supply impacts and does not necessarily represent ongoing impacts. Many of the water supply complaints listed below have either returned to background conditions, have been mitigated through the installation of water treatment controls or have been addressed through replacement of the original water supply. This list is dynamic in nature and will be updated to reflect new water supply impacts as they are reported to DEP and a determination is made; however, the list will retain cases of water supply impacts even after the impact has been resolved.

A redacted copy of the water supply determination letter/order can be viewed by clicking on the “Complaint #” or “ORDER” cell in the table. Each row on the list represents a single water supply determination. A single water supply determination may be represented by multiple “Complaint #s” (i.e., when more than one Complaint # is included in the same row) and, conversely, separate water supplies may be identified using the same Complaint # (i.e., when multiples rows list the same Complaint #. The list also identifies the municipality and county where each water supply is located along with the date of the water supply determination letter or the date the order was issued.

DOGO Complaint # County Twp/Boro Date Letter Sent 1 East 258482 Susquehanna Dimock Jan 2009 2 East ORDER Susquehanna Dimock 12/15/2010 3 East ORDER Susquehanna Dimock 12/15/2010 4 East ORDER Susquehanna Dimock 12/15/2010 5 East ORDER Susquehanna Dimock 12/15/2010 6 East ORDER Susquehanna Dimock 12/15/2010 7 East ORDER Susquehanna Dimock 12/15/2010 8 East ORDER Susquehanna Dimock 12/15/2010

222 PA Oil and Gas Reporting Website, https://www.paoilandgasreporting.state.pa.us/publicreports

182 APPENDIX: PA DEP - Private Water Well Contamination

DOGO Complaint # County Twp/Boro Date Letter Sent 9 East ORDER Susquehanna Dimock 12/15/2010 10 East ORDER Susquehanna Dimock 12/15/2010 11 East ORDER Susquehanna Dimock 12/15/2010 12 East ORDER Susquehanna Dimock 12/15/2010 13 East ORDER Susquehanna Dimock 12/15/2010 14 East ORDER Susquehanna Dimock 12/15/2010 15 East ORDER Susquehanna Dimock 12/15/2010 16 East ORDER Susquehanna Dimock 12/15/2010 17 East ORDER Susquehanna Dimock 12/15/2010 18 East ORDER Susquehanna Dimock 12/15/2010 19 East ORDER Susquehanna Dimock 12/15/2010 20 East 258959 Susquehanna Lenox 05/27/2009 21 East 258960 Susquehanna Lenox 05/27/2009 22 East 259175 Tioga Clymer 11/12/2008 23 East 260999 Tioga Clymer 04/28/2009 24 East 260999 Tioga Clymer 04/28/2009 25 East 260999 Tioga Clymer 04/28/2009 26 East 263337 Susquehanna Springville 09/09/2009 27 East 263337 Susquehanna Springville 09/09/2009 28 East 263337 Susquehanna Springville 09/09/2009 29 East 265150 Lycoming McNett 12/04/2009 30 East 265150 Lycoming McNett 12/04/2009 31 East 268097 Susquehanna Rush 04/23/2010 32 East 269945 Bradford Terry 02/07/11 33 East 272059 Bradford West Burlington 09/16/2010 34 East 272604 Bradford Granville 09/02/2010 35 East 273310 Bradford Terry 10/01/2010 36 East 273310 Bradford Terry 10/01/2010 37 East 273310 Bradford Terry 10/01/2010 38 East 273350 Bradford Terry 11/15/2010 39 East 273403 Bradford Terry 11/15/2010 40 East 273463 Wyoming Washington 04/08/2011

183 APPENDIX: PA DEP - Private Water Well Contamination

DOGO Complaint # County Twp/Boro Date Letter Sent 41 East 273868 Bradford Orwell 08/22/2011 42 East 274088 Bradford Tuscarora 03/25/2011 274465 43 East 274348 Bradford Tuscarora 03/07/2011 44 East 274484 Bradford Wilmot 11/10/2010 45 East 274484 Bradford Wilmot 11/10/2010 46 East 274484 Bradford Wilmot 11/10/2010 47 East 274484 Bradford Wilmot 11/10/2010 48 East 274484 Bradford Wilmot 11/10/2010 49 East 274484 Bradford Wilmot 11/10/2010 50 East 274484 Bradford Wilmot 11/10/2010 51 East 274977 Bradford Alba Boro 12/06/2010 52 East 275203 Bradford Alba Boro 01/03/2011 53 East 275203 Bradford Alba Boro 01/03/2011 54 East 275524 Potter Bingham 04/20/2011 285034 55 East 275545 Potter Bingham 04/20/2011 56 East 275833 Bradford Monroe 12/03/2010 57 East 275834 Bradford Monroe 12/03/2010 58 East 275834 Bradford Monroe 12/03/2010 59 East 275992 Bradford Alba Boro 12/06/2010 60 East 276069 Bradford Terry 12/07/2010 61 East 276819 Bradford Alba Boro 01/31/2011 62 East 277315 Bradford West Burlington 06/18/2012 63 East 277726 Bradford Troy 08/17/11 64 East 277775 Bradford Wyalusing 10/24/11 65 East 277902 Bradford West Burlington 06/18/2012 66 East 277927 Bradford Wyalusing 10/24/2011 67 East 278614 Tioga Charleston 05/04/2011 68 East 279070 Bradford Wilmot 05/16/2011 69 East 279442 Potter Allegheny 07/14/2011 70 East 279657 Wyoming Meshoppen 07/13/2011 71 East 279838 Lycoming Franklin 08/02/11

184 APPENDIX: PA DEP - Private Water Well Contamination

DOGO Complaint # County Twp/Boro Date Letter Sent 72 East 280019 Lycoming Franklin 08/02/11 73 East 280020 Lycoming Moreland 03/08/2012 74 East 280200 Bradford Smithfield 08/01/11 75 East 280207 Bradford Stevens 02/20/14 76 East 280209 Bradford Stevens 02/20/14 77 East 280219 Lycoming Moreland 11/04/11 78 East 280698 Bradford Orwell 11/07/11 79 East 282014 Tioga Covington 11/01/11 80 East 282304 Lycoming Moreland 11/04/11 81 East 282431 Susquehanna Lenox 09/21/11 82 East 284149 Clinton Grugan 01/17/12 83 East 284149 Susquehanna Rush 11/07/11 84 East 285804 Bradford Asylum 01/06/12 85 East 286295 Lycoming Moreland 09/05/12 86 East 286302 Wycoming Nicholson 03/02/12 87 East 286302 Wycoming Nicholson 03/02/12 88 East 286490 Lycoming Moreland 09/05/12 89 East 286491 Lycoming Moreland 09/05/12 90 East 286551 Bradford Wysox 08/28/13 91 East 286642 Bradford West Burlington 06/18/12 92 East 286643 Bradford West Burlington 06/18/12 93 East 286658 Lycoming Moreland 04/22/13 94 East 287005 Tioga Delmar 05/16/12 95 East 287198 Sullivan Elkland 09/09/13 96 East 288376 Tioga Shippen 11/26/13 97 East 289614 Clearfield Gulich 08/24/12 98 East 289642 Bradford Leroy 08/13/12 99 East 290009 Bradford Leroy 08/13/12 100 East 290279 Bradford Leroy 08/13/12 101 East 290453 Susquehanna Lenox Leroy 09/11/12 8/13/2012 102 East 291156 Bradford Leroy 08/13/12

185 APPENDIX: PA DEP - Private Water Well Contamination

DOGO Complaint # County Twp/Boro Date Letter Sent 103 East 291551 Sulivan Forks 09/11/13 104 East 291551 Sullivan Forks 09/09/13 105 East 291602 Tioga Union 01/14/13 106 East 291603 Tioga Union 01/14/13 107 East 291931 Susquehanna Bridgewater 11/20/12 108 East 292425 Susquehanna Jessup 01/14/13 109 East 292459 Sullivan Forks 09/09/13 110 East 292761 Bradford Armenia 04/12/13 111 East 292819 Bradford Burlington 02/21/13 112 East 293067 Lycoming Moreland 04/22/13 113 East 293075 Bradford Springfield 08/04/14 114 East 293597 Bradford Springfield 08/04/14 115 East 293929 Bradford Warren 05/06/14 116 East 294115 Bradford Wilmot 03/25/13 117 East 294619 Susquehanna Dimock 10/22/13 118 East 294741 Sullivan Forks 09/09/13 119 East 295774 Wyoming Washington 08/28/13 120 East 297823 Susquehanna Lenox 10/11/11 121 East 297824 Susquehanna Lenox 11/07/11 122 East 297825 Susquehanna Lenox 03/02/12 123 East 289029 Susquehanna Dimock 09/21/11 124 East 298064 Bradford Springfield 08/04/14 125 East 303704 Susquehanna Springville 05/14/14 126 East 300692 Bradford Wysox 11/13/14 127 East 301074 Susquehanna Dimock 10/28/14 128 East 306750 Susquehanna Dimock 12/05/14 129 East 308376 Susquehanna Bridgewater 12/29/14 130 East 308529 Lycoming Eldred 12/12/14 131 East 308755 Susquehanna Hartford 11/21/14 132 East 309245 Wyoming Windham 01/16/15 133 East 309261 Lycoming Eldred 02/02/15 134 Northwest 250746 Venango Oakland 12/24/07

186 APPENDIX: PA DEP - Private Water Well Contamination

DOGO Complaint # County Twp/Boro Date Letter Sent 135 Northwest 251599 Crawford Woodcock 01/30/08 136 Northwest 252267 Erie Millcreek 04/11/08 137 Northwest 252267 Erie Millcreek 04/11/08 138 Northwest 252818 McKean Foster 04/04/08 139 Northwest 253478 Forest Hickory 04/29/08 140 Northwest 254802 Crawford Hayfield 05/22/08 141 Northwest 254900 Forest Howe 07/24/08 142 Northwest 256043 McKean Bradford 07/29/08 143 Northwest 256642 Erie Waterford 10/08/13 144 Northwest 257185 McKean Hamilton 09/12/08 145 Northwest 257185 McKean Hamilton 09/12/08 146 Northwest 257867 Jefferson Winslow 10/10/08 147 Northwest 258217 Jefferson Clover 10/28/08 148 Northwest 258396 McKean Hamilton 10/30/08 149 Northwest 258396 McKean Hamilton 10/30/08 150 Northwest 258483 McKean Foster 10/30/08 151 Northwest 258484 Warren Sheffield 11/10/08 152 Northwest 258625 Clarion Limestone 01/27/09 153 Northwest 258625 Clarion Limestone 01/27/09 154 Northwest 259040 Elk Jones 11/13/08 155 Northwest 259064 Clarion Limestone 03/26/09 156 Northwest 260043 Warren Sheffield 12/23/08 157 Northwest 260496 McKean Corydon 02/17/09 158 Northwest 260565 Venango Cranberry 08/13/09 159 Northwest 2608916 McKean Foster 03/10/09 160 Northwest 261105 Jefferson Oliver 04/02/09 161 Northwest 262473 Warren Mead 08/03/09 162 Northwest 262648 Jefferson Knox 05/27/09 163 Northwest 262648 Jefferson Knox 05/27/09 164 Northwest 262683 McKean Foster 06/01/09 165 Northwest 262771 Jefferson Knox 07/13/09 166 Northwest 263617 Warren Glade 02/18/10

187 APPENDIX: PA DEP - Private Water Well Contamination

DOGO Complaint # County Twp/Boro Date Letter Sent 167 Northwest 263963 McKean Bradford 07/21/09 168 Northwest 264898 McKean Bradford 03/05/10 169 Northwest 265297 Jefferson Knox 09/11/09 170 Northwest 265323 Clarion Elk 09/10/09 171 Northwest 266017 Jefferson Warsaw 10/19/09 172 Northwest 266591 Crawford Oil Creek 06/24/11 173 Northwest 267033 Clarion Elk 01/05/10 174 Northwest 267880 Clarion Elk 01/20/10 175 Northwest 267880 Clarion Elk 01/20/10 176 Northwest 269055 Forest Kingsley 03/22/10 177 Northwest 269244 Warren Glade 09/27/10 178 Northwest 271422 McKean Bradford 10/19/10 179 Northwest 271490 Warren Sheffield 06/17/10 180 Northwest 272189 Forest Hickory 08/02/10 181 Northwest 272948 McKean Bradford 12/17/10 182 Northwest 273024 Clarion Madison 07/18/14 183 Northwest 273321 Crawford Spring 01/28/11 184 Northwest 273460 McKean Corydon Oct. 2010 185 Northwest 274735 Elk Jones 12/23/10 186 Northwest 276220 McKean Foster 02/09/11 187 Northwest 276776 Forest Hickory 03/28/12 188 Northwest 276776 Forest Hickory 03/28/12 189 Northwest 276776 Forest Hickory 03/28/12 190 Northwest 276776 Forest Hickory 03/28/12 191 Northwest 276776 Forest Hickory 03/28/12 192 Northwest 276776 Forest Hickory 03/28/12 193 Northwest 276776 Forest Hickory 03/28/12 194 Northwest 276776 Forest Hickory 03/28/12 195 Northwest 276776 Forest Hickory 03/28/12 196 Northwest 276776 Forest Hickory 03/28/12 197 Northwest 276776 Forest Hickory 03/28/12 198 Northwest 276776 Forest Hickory 03/28/12

188 APPENDIX: PA DEP - Private Water Well Contamination

DOGO Complaint # County Twp/Boro Date Letter Sent 199 Northwest 276776 Forest Hickory 05/03/11 200 Northwest 276823 Forest Hickory 05/04/11 201 Northwest 277438 McKean Bradford 07/13/11 201 Northwest 278982 Warren Pleasant 05/04/12 203 Northwest 281151 Elk Jones 08/08/11 204 Northwest 287891 Butler Winfield 06/04/13 205 Northwest 289916 Clarion Toby 11/29/12 206 Northwest 290406 Lawrence Pulaski 11/13/13 207 Northwest 290406 Lawrence Pulaski 11/13/13 208 Northwest 290406 Lawrence Pulaski 11/20/13 209 Northwest 290406 Lawrence Pulaski 10/07/13 210 Northwest 291029 Butler Winfield 09/07/12 211 Northwest 292020 Warren Sugar Grove Sept. 2012 212 Northwest 293565 Warren Pleasant 01/04/13 213 Northwest 294446 Forest Kingsley 07/19/13 214 Northwest 294734 Warren Pleasant 07/11/13 215 Northwest 294947 McKean Foster 08/28/13 216 Northwest 296020 Butler Forward 08/28/13 217 Northwest 297871 Clarion Porter 03/24/14 218 Northwest 298337 Warren Glade 10/01/13 219 Northwest 300296 McKean Lafayette Nov. 2013 220 Northwest 259354 Jefferson Knox 03/27/09 261083 221 Northwest 267519 McKean Bradford 12/11/09 268448 222 Northwest 267519 McKean Bradford 12/11/09 268448 223 Northwest 305257 Butler Connoquenessing 12/12/14 224 Northwest 305506 Warren Mead 07/28/14 225 Northwest ORDER McKean Bradford 02/23/10 226 Northwest ORDER McKean Bradford 02/23/10 227 Northwest ORDER McKean Bradford 02/23/10 228 Northwest ORDER McKean Bradford 02/23/10

189 APPENDIX: PA DEP - Private Water Well Contamination

DOGO Complaint # County Twp/Boro Date Letter Sent 229 Northwest ORDER McKean Bradford 02/23/10 230 Northwest ORDER McKean Bradford 02/23/10 231 Northwest ORDER McKean Bradford 02/23/10 232 Northwest ORDER McKean Bradford 02/23/10 233 Northwest ORDER McKean Bradford 02/23/10 234 Northwest 306890 Warren Farmington 10/28/14 235 Northwest 307002 Venango Cranberry 12/09/14 236 Northwest 307679 Jefferson Eldred 10/30/14 237 Southwest 281911 Indiana West Wheatfield 08/30/13 238 Southwest 281911 Westmoreland Donegal 12/16/13 239 Southwest 291965 Westmoreland Donegal 06/04/13 240 Southwest 294666 Washington Cross Creek 06/17/13 241 Southwest 302442 Westmoreland Donegal 08/25/14 242 Southwest 306873 Westmoreland Donegal 12/05/14 243 Southwest ORDER Indiana East Wheatfield 09/02/08 244 Southwest ORDER Indiana East Wheatfield 09/02/08 245 Southwest ORDER Indiana East Wheatfield 09/02/08 246 Southwest ORDER Indiana East Wheatfield 09/02/08 247 Southwest ORDER Indiana East Wheatfield 09/02/08 248 Southwest ORDER Indiana West Mahoning 02/12/08 249 Southwest ORDER Washington West Pike Run 03/27/08 250 Southwest ORDER Fayette Jefferson 01/04/08 251 Southwest ORDER Indiana Cherryhill 01/15/08 252 Southwest ORDER Greene Washington 09/11/14

190 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws

16. APPPENDIX: Examples of NYS Zoning Amendments and Local Laws

(Note: Text of these verbatim sources not italicized.)

16.1 Example: Text of Town of Roseboom, NY Protection of Rural Environment Law

Protection of Rural Environment Local Law of the Town of Roseboom Be it Enacted by the Town Board of the Town of Roseboom, Otsego County, New York, as follows:

I. Title

This Local Law shall be known as the "Protection of Rural Environment Local Law of the Town of Roseboom", adopted as Town of Roseboom Local Law No. _ of 2012. II. Enactment

This Local Law is adopted and enacted pursuant to the authority and power granted by the New York State Constitution, Article IX, Municipal Home Rule Law of the State of New York, Articles 2 and 3, the New York State Statute of Local Governments, Article 2, the Town Law of the State of New York, Environmental Conservation Law, Articles 17 and 27, and New York State Public Health Law §228(2) in conformance with the Comprehensive Plan for the Town of Roseboom, to protect and promote public health, safety, comfort, convenience, economy, natural and cultural resources, aesthetics, and the general welfare, and for the purposes outlined in Section III. III. Purpose

The purposes of this Local Law, which prohibits Heavy Industry within the Town, are as follows.

~l '"' It is the purpose of this Local Law to promote the protection, order, conduct, safety, health, and well-being of the residents of Roseboom and the lands which lie within the Town's borders.

It is the purpose of this Local Law to protect and enhance the Town's physical and visual environment.

191 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws

It is the purpose of this Local Law to respond to the present, legitimate concerns of the citizens of the Town about the potential for a massive expansion of natural gas drilling in the Town and about the potential for major portions of the Town and its citizens to be adversely impacted by the drilling and operation of natural gas wells and by the activities associated with their operation.

It is the purpose of this Local Law to protect the citizens of the Town of Roseboom from potential human health hazards presented by natural gas exploration, extraction or processing as evidenced by the recent public statements issued by the medical community.

It is the purpose of this Local Law to uphold and implement the Town of Roseboom Comprehensive Plan.

The Town Board of the Town of Roseboom, in adopting a comprehensive plan in May of 2012, established town policy guiding future growth and development as follows:

A. Protect the Town's natural resources in an effort to assure their sustainability and availability by preventing irreplaceable loss, misuse and/or degradation.

B. Effectively plan for and manage future changes in land use that allow development while preventing the loss of natural and cultural resources.

C. Maintain and restore community character to encourage high quality diversified housing that meets the needs of all age and income groups resulting in neighborhoods that are safe, clean, and promote increased residency.

D. Promote small business growth in the area to increase the tax base and encourage families to move to and stay in the area.

E. Promote and protect our historic structures and landscapes.

F. Maintain and protect the Town's roads and .bridqes. Minimize hazards and congestion of roads within the Town.

G. Protect water resources, flood plains and wetlands in an effort to assure their sustainability by preventing irreplaceable loss, misuse, and/or degradation.

H. Identify, protect, and preserve significant historical, archeological and other cultural resources within the Town of importance to the community, state and nation. Protect, preserve and as appropriate, encourage the adaptive reuse of historic properties.

I. Encourage creation and maintenance of high quality diversified housing that meets the needs of all age and Income groups resulting in neighborhoods that are safe, clean, friendly, and conveniently accessible t community services and public facilities.

192 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws

Further. The Town Board, in adopting its comprehensive plan, incorporated analysis of natural resources from the Otsego County Planning Department which established that:

J. Based on review of the Otsego County Flood Map, those portions of Roseboom that are not within steep slopes are typically associated with 100 and 500 year flood plain areas. Resultant from this is a Town largely compromised in its development potential; where it is not steep, it floods.

K. Roseboom is located at the headwaters of the Cherry Valley Creek, which flows into the Susquehanna River. The Town's eastern streams flow to the Mohawk and Hudson Rivers.

L The Town of Roseboom Soil Map shows that the soils in the Town of Roseboom are clay, rock, slate. shale. and prime farmland soil.

M. The Town of Roseboom houses a Variety of wildlife including those on the endangered and threatened list issued by the NYS Department of Conservation. Jacob's Ladder (Polemonium van- runtiae), a globally rare plant, is located within Lordsland Conservancy, a nature preserve in Roseboom.

N. A well-known scenic vista is at the top of Jocelyn Hill Tower Road showing rolling hills, woodlands, fields, and scenic valley views. On top of County Route 39, known as Tower Hill Road, there is a panoramic view of valleys and woodlands. Honey Hill Road's viewshed is compromised of hilltops, rolling fields, and lush woodlands. Adair Road also has a similar valley viewshed. Many scenic vistas exist throughout the Township.

Further, the Town Board, in adopting its comprehensive plan specifically established the following principles and priorities:

O. Protect and preserve the rural character, natural resources and landscapes, scenic vistas, and clean and safe land, air, and water with the full enforcement of all local, state and federal laws and mandates.

P. Preserve and maintain accessibility to open spaces.

Q. Maintain safety and security for residents and future generations.

R. Ensure viability of agriculture and the farming community.

S. Safeguard the Town's rural character.

T. Maintain the Town's important national historic character rich with the history of America's earliest colonial beginnings.

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U. Responsibly manage and improve new growth while respecting property rights in order to protect the integrity of the Town.

V. Support well-built and maintained roadways, but also control traffic volume and speed to be in harmony with the gentle nature of the Township.. Set quality design standards to ensure that new growth and development will enrich community aesthetics.

X. Hold together the fabric of the Town while still connecting the people of Roseboom to the rest of the world.

Further, it is the purpose of this Local Law to prohibit those activities related to heavy industry, which may impact wetlands, lakes, streams, groundwater resources, public drinking supplies, public roads, historic landscapes, agriculture, small town, rural character, and the area's tourism and recreational-based economy. Impacts related to heavy industry that Roseboom seeks to avoid include, but are not limited to contaminated water supplies, air pollution, traffic congestion, deterioration of roads and bridges, noise, introduction of industrial uses into non-industrial areas, human and animal illness, and incompatible changes to the rural character of Town.

IV. Definitions

Agriculture - The land and on-farm buildings, equipment, manure processing and handling facilities, and practices which contribute to the' production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise, including timber operations as defined in AML Article 25-AA (301).

Aquifer - A geologic formation, group of formations, or part of a formation capable of storing or transmitting and yielding groundwater to wells or springs.

Comprehensive Plan - A long-range plan intended to guide the growth and development of the Town of Roseboom which includes inventory and analysis leading to recommendations for the Town's land use, future economic development, agriculture, housing, recreation and open space, transportation, community facilities, and community design, alt related to the Town's goals and objectives for these elements and adopted pursuant to New York State Town Law 272-a.

Compression Facility --- Those facilities or combination of facilities that move natural gas or petroleum from production fields or natural gas processing facilities in pipelines or into storage; the term shall include equipment for liquids separation, natural gas dehydration, and tanks for the storage of waste liquids and hydrocarbon liquids.

Environment - All external conditions and influences in an area including geology, water resources, air quality, plants and animals, agricultural resources, aesthetic resources, historic resources, open space resources, recreational, cultural, and municipal resources, road and

194 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws transportation systems, visual character and community character.

Exploration for Natural Gas and/or Petroleum - Geologic or geophysical activities related to the search for natural gas and/or petroleum including prospecting, geophysical and geologic seismic surveying and sampling techniques, but only to the extent that such activities involve or employ core, rotary or any other type of drilling or otherwise making any penetration or excavation of any land or water surface in the search for and evaluation of natural gas, petroleum, or other subsurface hydrocarbon deposits.

Extraction of Natural Gas and/or Petroleum - The digging or drilling of a well to explore for, develop or produce natural gas and/or petroleum, including, but not limited to any and all forms of fracturing.

Heavy Industry -_Any use or activity, which generates significant volumes of smoke, odors, noise, or other polluting wastes and is inconsistent with the rural, nonindustrial character of the Town of Roseboom. Examples of "heavy industry" which are intended to be included in this definition are: chemical manufacturing; natural gas and petroleum mining (as defined elsewhere in this Law) including exploration, extraction, processing, and resultant waste; coal mining; coal processing; and steel manufacturing. It is expressly stated that the foregoing examples are not intended to be exhaustive and shall not be construed to limit the meaning, scope or application of this definition or to limit the application of this definition solely to the activities identified in the examples.

Generic examples of uses not intended to be included in the definition of "heavy industry" are: milk processing plants; dairy farms; office and communications uses; garment factories; woodworking and cabinet shops; automobile repair shops; wineries and breweries; warehouses; equipment repair and maintenance facilities; helipads; parking lots and parking garages; light manufacturing or light industrial facilities (as defined elsewhere in this Law); agriculture; and surface gravel and sand mining. It is expressly stated that the foregoing examples are not intended to be exhaustive and shall not be construed to limit the meaning, -scope or application of this definition or to limit the application of this definition solely to those activities identified in the examples.

Light Manufacturing And Light Industrial Operations - A facility or use which does not produce high volumes of polluting wastes, is compatible with the Town of Roseboom's rural, non- industrial character, does not require heavy, noisy or otherwise objectionable machinery or transporting equipment, and in addition, meets one of the following descriptions:

i. Light Manufacturing. A use involving the manufacture of a product, subject to compliance with any other applicable ordinances, laws or regulations, in one of the following categories:

A. Food and beverage production, including but not limited to such uses as a dairy

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processing plant, bakery, and bottling plant.

B. Apparel and other textile products.

C. Furniture and fixtures.

D. Printing and publishing.

E. Electrical and electronic machinery and equipment.

F. Metal fabrication.

G. Mail order distribution center.

H. Warehousing ancillary to the authorized use.

ii. Light Industrial. A facility, which manufactures, designs, assembles, or processes a product for wholesale or retail sale.

Natural Gas - Methane and any gaseous substance, either combustible or noncombustible, which is produced in a natural state from the earth and which maintains a gaseous or rarefied state at standard temperature and pressure conditions, and/or gaseous components or vapors occurring in or derived from petroleum or other hydrocarbons.

Natural Gas and Petroleum Mining - The Exploration for Natural Gas and/or Petroleum, the Extraction of Natural Gas and/or Petroleum from the ground, the Processing of Natural Gas and/or Petroleum, and the storage, treatment, and/or disposal of waste resultant from Natural Gas and/or Petroleum Exploration, Extraction, and/or Processing. This definition shall specifically include, but not be limited to, the extraction method commonly known as hydraulic fracturing. This definition shall also be construed to encompass and include any activity and/or use of land and/or water, which facilitates or supports natural gas and/or petroleum exploration, extraction, processing, and/or the storage, treatment, and/or disposal of resultant waste. Examples of activities or uses of land and/or water expressly intended to be included in this definition are set forth below:

• Drilling and/or installation of a new natural gas and/or petroleum well, regardless of well type; • Development of a natural gas and/or petroleum well operations site; • Supporting structures and infrastructure, such as Compression Facilities and Processing Facilities; • Mixing, storage, treatment, and/or disposal of chemicals, wastewater, proppant or other materials used for, or in connection in any way with, the Exploration for, Extraction and/or Processing of Natural Gas and/or Petroleum;

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• Parking, standing and/or storage of any type of vehicle, equipment, and/or materials used for or in connection with the Exploration, Extraction, and/or Processing of Natural Gas and/or Petroleum, and/or the storage, treatment, and/or disposal of resultant wastes.

It is expressly stated that the foregoing examples are not intended to be exhaustive and shall not be construed to limit the meaning, scope or application of this definition or to limit the application of this definition solely to those activities identified in the examples. This definition shall be construed to encompass and include any activity and/or use of land and/or water, which facilitates or supports Natural Gas and/or Petroleum Exploration, Extraction, Processing, and/or the storage, treatment, and/or disposal of resultant waste with the exception of (1) any public utility as defined within this Law (2) pipelines and compression facilities under the jurisdiction of the Federal Energy Regulatory Commission and the New York Public Service Commission, (3) gathering lines that connect oil and gas development in another municipality with a regulated pipeline or a public utility, (4) the sale, storage or use of lubricating oil, heating oil, gasoline, diesel fuel, kerosene, or propane in connection with legal farm, residential, business, commercial, and other permitted uses within the Town, (5) subsurface fracturing only as a result of a permitted well operation located in another municipality, (6) water withdrawals and other water management issues under the jurisdiction of county, state, and/or federal agencies and/or commissions, and (7) office-based management, administrative, accounting, advocacy, and other such Professional, non-industrial services within the Town of Roseboom that may concern the Oil and Gas Industry.

Non-Conforming Use - A use or activity that was lawful prior to the adoption of this Local Law but that fails by reason of such adoption to conform to the present requirements of the law.

Person - Any individual, public or private corporation for profit or not for profit, association, partnership, limited liability company, limited liability partnership, firm, trust, or estate, and any other legal entity whatsoever which is recognized by law as the subject of rights and duties.

Petroleum - Crude petroleum oil and all other hydrocarbons, regardless of gravity, in liquid form.

Processing Facility - An industrial operation and/or plant that processes and refines natural gas and/or petroleum into other commodities.

Processing of Natural Gas and/or Petroleum - The production of any commodity made from and/or byproduct of natural gas or petroleum including, but not limited to refined crude oil, crude tops, topped crude, processed crude, processed crude petroleum, residue from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil, residuum, gas oil, casinghead gasoline, natural-gas gasoline, kerosene, benzine, wash oil, waste oil, blended gasoline, lubricating oil, blends or mixtures of oil with one or more liquid products or by- products derived from oil or gas, and blends or mixtures of two or more liquid products or by- products derived from petroleum or gas, whether herein enumerated or not.

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Public Utility - An entity which operates as a monopoly, and whose rates charged to customers are established by a utility commission. A public utility use provides electric, gas, steam, telephone service, water or sewerage directly to the general public.

Road - A vehicular access way either currently designated as a Town, County or State Road, or any private platted access way, built to town requirements.

Waterbody - Any natural or artificial pond, lake, reservoir, or other area which usually or intermittently contains water and which has a discernible shoreline.

Watercourse - i. Rivers, streams, brooks and waterways, which are delineated on the most recent edition of the United States Geological Survey topographic maps of the Town.

ii. Any other streams brooks and waterways conta!ning running water a total of at least three (3) months a year.

iii. lakes, ponds, marshes, swamps, bogs, natural springs and all other waterbodies, natural or artificial, which are fed by or have discharge to another wetland, waterbody or watercourse.

V. Regulation

A. Beginning on the effective date of this local law, it shall be unlawful for any person to conduct any new "Heavy Industry," as the term is defined in this local Law, within the Town of Roseboom.

B. During the effective period of this local law:

1. The Town Planning Board shall not consider and/or approve any site plan, any special use permit or other permit which would result in the establishment, implementation, placement, construction, development and/or expansion of "Heavy Industry" as defined within this Law. 2. The Town Zoning Board of Appeals, if appointed, shall not consider, nor grant any variance or other permit for any use, which would result in the establishment, implementation, placement, construction, development and/or expansion of "Heavy Industry" as defined within this Law. 3. Zoning Enforcement, if appointed, shall not consider and/or issue any land use permit or other permit, which would result in the establishment, implementation, placement, construction, development and/or expansion of "Heavy Industry" as defined within this Law.

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VI. Enforcement and Violations

A. Upon authorization by the Town Board, the Town may institute an action or proceeding in a court of competent jurisdiction to prevent, restrain, enjoin, correct, or abate any violation of or to enforce any provision of this Law.

VII. Non-conforming Uses

"Natural Gas and Petroleum Mining," as defined elsewhere in this law and included within the definition of "Heavy Industry," shall be prohibited in the Town of Roseboom beginning on the effective date of this local law.

Any leases of property for the purpose of allowing "Natural Gas and Petroleum Mining" as defined within this law which are being presently conducted on land in the Town as of the effective date of this law, shall be subject to the following:

A. Existing leases:

1. Where a lease which allows "Natural Gas and Petroleum Mining" as defined within this Law has been executed and where no substantive "Natural Gas and Petroleum Mining" as defined within this Law has substantively commenced as of the effective date of this Local law, then this Local Law shall apply in full effect and shall operate to prohibit all such activities beginning on the effective date of this Local Law. The existence of a lease under the circumstances described in this paragraph shall convey no vested right upon either party to the lease.

B. Existing Operations

1. Where a lease which allows "Natural Gas and Petroleum Mining" as defined within this Law has been executed, and where substantive extraction activity is occurring as of the effective date of this Law, and those activities are being conducted pursuant to valid permits issued by the New York State Department of Environmental Conservation or other regulating agencies, in that case the activity shall be considered a non-conforming use and shall be allowed to continue.

2. Upon the depletion of any natural gas and/or petroleum well which is allowed to remain in operation pursuant to this provision, or upon any other termination of the extraction activity for a period of more than one (1) year, the non-conforming use status of that activity shall terminate and the activity shall not be renewed.

3. Further, no "Natural Gas and Petroelum Mining" allowed to remain in operation as a non- conforming use shall be permitted to expand after the effective date of this

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Local Law.

VIII. Severability

If any specific part or provision or standard of this Local Law, or the application thereof to any person or circumstance, be adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision or application directly involved in the controversy in which such judgment shall have been rendered and shall not affect or impair the validity of the remainder of this Local Law or the application thereof to other persons or circumstances, and the Town Board hereby declares that it would have enacted this Local Law, or the remainder thereof.

IX. Interpretation; Conflict With Other Laws

In their interpretation and application, the provisions of this Local Law shall be held to be minimum requirements adopted for the promotion of the public health, safety, or the general welfare. Whenever the requirements of this Local Law are inconsistent with the requirement of any other lawfully adopted rules, regulations, ordinances or local laws, the more restrictive provisions, or those imposing the higher standards, shall govern.

X. Effective Date

This Local Law shall take effect immediately upon filing with the Office of the Secretary of State of the State of New York, in accordance with the applicable provisions of law, and specifically Article 3, Section 27 of the New York State Municipal Home Rule Law.

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16.2 Example: Text of Town of Tusten, NY Waste Management Amendment

ARTICLE XIV — EXPLICITLY PROHIBITED USES (Pages 173-175)

14.1 Findings The Town Board of the Town of Tusten has heretofore made certain findings, determinations, and declarations relative to the matters set forth in this Article XIV, and a copy of the text of such findings, determinations, and declarations are set forth in Appendix A attached to this law.

14.2 Purposes Article XIV of this Law is enacted so as to take proactive steps to protect and preserve the Town’s rural residential character, the quality of the Town’s air and water and scenic and other natural resources, and other assets, to encourage the tourism industry, and to further the Purposes described at Section 1.3 of this Law. Without limiting the generality of the foregoing, this Article XIV is intended and is declared by the Town Board to:

(1) promote the purposes of planning and land use regulation by, among other things, preserving the roads, storm water detention facilities, and fire, police, and other emergency response services in the Town;

(2) promote the health, safety and welfare of the Town, its present and future inhabitants, by protecting them from the adverse public nuisance and/or land use impacts and effects that could result if any one or more of the explicitly prohibited uses defined in this Article XVI were allowed to be conducted within the Town;

(3) protect the Town’s priceless and unique character, the preservation of which is of significant value to the inhabitants of the Town and the tourists who visit here, by protecting it from the adverse public nuisance and/or land use impacts and effects that could result if any one or more of the explicitly prohibited uses defined in this Article XVI were allowed to be conducted within the Town; and

(4) protect the Town’s irreplaceable historic, recreation, tourism sites, water quality, air quality, scenic and other natural resources, by protecting them from the adverse public nuisance and/or land use impacts and effects that could result if any one or more of the explicitly prohibited uses described in Article XIV of this Law were allowed to be conducted within the Town.

14.3 Declaration of Intent

(1) Exercise of Police Power and Zoning Authority. This Law in general and Article XIV of this Law in particular is a police power, public nuisance and land use regulation, designed to establish and

201 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws provide for general land use regulation, environmental protection, public safety, prevention of increased traffic congestion, protection of rural and agricultural resources, preservation of the character of the Town, protection of underground drinking water supplies, prevention of noise and disturbance, protection against diminished property values, and protection of the public from nuisance and/or land use effects and impacts that could result from the land use activities defined as explicitly prohibited uses within the Town in Section 14.5 of this Law.

(2) Consistency with the Town’s Comprehensive Plan. Without limiting the generality of the foregoing, Article XIV of this Law is made in specific consideration for: (i) the preservation of the quality of life associated with the unique rural and historic character of the Town; (ii) the unsuitability of the Town’s public facilities and services (including police, fire, and emergency medical services) in containing or mitigating possible dangerous spillover effects of high impact industrial use activities.

(3) Prohibition Against Specified Solid Wastes. Article XIV of this Law intends to regulate, in a manner consistent with law, including without limitation, NY ECL ｧ 27-0711, and conducive to the health and welfare of the citizens of the Town, the dumping, discharging, injection and disposal of materials herein defined as “Natural Gas and/or Petroleum Extraction, Exploration or Production Wastes” on lands within the Town.

(4) Protection of Private Drinking Water Supplies. Article XIV of this Law is intended to protect drinking water supplies and is intended to supplement and enhance and is not intended to impinge on the Safe Drinking Water Act and the Underground Injection Control programs administered by the Environmental Protection Agency.

(5) Matters of Local Concern. Article XIV of this Law is intended to and is hereby declared to address matters of local concern, and it is declared that it is not the intention of the Town Board to address matters of statewide concern.

(6)Negative Externalities. Article XIV of this Law is intended and is hereby declared to impose conditions and restrictions on the use of property that are directly related to and incidental to the use of that property, and such conditions and restrictions are aimed at minimizing or precluding the adverse impact on the Town that could result from an inappropriate use of the property that could otherwise adversely affect the comfort, peace, enjoyment, health and safety of the surrounding land. (7)Land Use Control. Article XIV of this Law is intended to act as and is hereby declared to exercise the permissive “incidental control” of a zoning law and police power that is concerned with the broad area of land use planning and the physical use of land and property within the Town, including the proper location for varying land use activities within the Town and the physical externalities associated with certain land uses, such as negative impacts on roadways and traffic congestion and other deleterious impacts on a community. This Law is not intended to regulate the operation and processes of permitted businesses. Article XIV of this Law is a

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law of general applicability and is intended to promote the interests of the community as a whole.

14.4 Authority

This Article XIV is intended to be consistent with and is adopted pursuant to the authority granted to the Town Board under the New York State Constitution, and the laws of the State of New York, including but not limited to the following authorities: New York State Constitution Article IX, Section 2(x)(ii)(6), 10; Municipal Home Law § 10(1)(ii)(a); Statute of Local Governments §10, Environmental Conservation Law §17-1101 and §27-0711, and Public Health Law §§228(2), (3).

14.5 Prohibited Uses

The following uses and activities are expressly and explicitly prohibited in any zoning district within the Town, and no building or structure shall be created, altered or erected, and no land or building thereon shall be used, for any of such uses or activities:

(a) Disposal of Radioactive Material. (b) Injection Well. (c) Land Application Facility. (d) Large Scale Water Use. (e) Natural Gas and/or Petroleum Exploration Activities. (f) Natural Gas and/or Petroleum Extraction Activities. (g) Natural Gas and/or Petroleum Extraction, Exploration or Production Wastes Disposal/Storage Facility. (h) Natural Gas and/or Petroleum Extraction, Exploration or Production Wastes Dump. (i) Natural gas Compression Facility. (j) Natural gas Processing Facility. (k) Non-regulated Pipeline. (l) Underground Injection. (m) Underground Natural Gas Storage.

Any condition caused or permitted to exist in violation of this Section 14.5 is a threat to public health, safety and welfare, and is hereby declared and deemed to be a nuisance. Collectively the above expressly prohibited uses may be referred to in this law as “Explicitly Prohibited Uses,” any one of the above expressly prohibited uses may be referred to in this law as an “Explicitly Prohibited Use,” and any combination of more than one such use may also be referred to as “Explicitly Prohibited Uses.”

14.6 Prohibition Against Natural Gas and/or Petroleum Extraction, Exploration or Production Wastes

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The Town of Tusten hereby exercises its authority and right under NY ECL § 27-0711 to adopt a local law that is consistent with the Environmental Conservation Law Article 27, such consistency demonstrated by the fact that this Local Law complies “with at least the minimum applicable requirements” set forth in such statute, and the rules and regulations promulgated pursuant to Article 27.

It shall be unlawful for any person to produce, store, inject, discard, discharge, dispose release, or maintain, or to suffer, cause or permit to be produced, stored, injected, discarded, discharged, disposed, or released, anywhere within the Town, any Natural Gas and/or Petroleum Extraction, Exploration or Production Wastes

APPENDIX A (Pages 178-181)

Text of Findings of Fact.

The Town Board of the Town of TUSTEN has found, determined, and declared that:

1. TUSTEN is a community in the Upper Delaware River Region that takes great pride in its rural residential character, scenic and other natural resources, and small-town atmosphere.

2. Preservation of the Town’s irreplaceable historic, recreation, and tourism sites, air quality and water quality, and priceless and unique character, is of significant value to the inhabitants of the Town and to the tourists who visit here.

3. The Town’s rich natural and visual environment is a valuable asset that creates a sense of identity and well-being for residents of the area. Preserving and protecting the scenic and other natural resources of the Town is important for both a healthy environment and vibrant economy. Aesthetic issues are real and evoke strong reactions from people. They deeply affect the way people feel about a place – whether or not businesses will want to locate or people will want to live in and visit a place.

4. The explicitly prohibited uses defined in Article XIV of this Zoning Law are in conflict with the TOWN OF TUSTEN COMPREHENSIVE PLAN, and would impair the existing character of the Town, because by their very nature such uses have the potential to produce a combination of negative impacts upon the environment and people living in or in proximity to the communities in which they are located. Such negative impacts may include, without limitation, traffic, noise, vibrations, fumes, damage to roadways, degradation of water quality, degradation of air quality, decreased availability of affordable housing, damage to and loss of agricultural lands and soils, damage to and loss of open space, natural areas, and scenic views, decreased recreational opportunities, and damage to the tourism industry.

5. If one or more of the explicitly prohibited uses defined in Article XIV of this Law are conducted

204 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws within the Town, traffic generated thereby could be hazardous or inconvenient to the inhabitants of the Town and could be dangerous to pedestrians (especially children), cyclists, and motorists, and could result in traffic congestion that could delay emergency response times for medical emergencies, fires and accidents. Roads are a critical public resource and constitute a major investment of the public’s money. Accidents involving heavy trucks have greater potential for death than those involving smaller vehicles. Increased truck traffic increases air pollution and noise levels, and decreases the quality of life and property values for those living nearby.

6. Allowing one or more of the explicitly prohibited uses defined in Article XIV of this Law to be conducted within the Town could negatively impact the tourism industry within the Town, and could impair the Town’s ability to attract additional tourism-related businesses.

7. If one or more of the explicitly prohibited uses defined in Article XIV of this Law are conducted within the Town, the air pollution, dust and odors generated thereby (whether onsite or by truck traffic to and from the proposed site) could be hazardous or inconvenient to the inhabitants of the Town. Air pollution is a known hazard to the public health.

8. Allowing one or more of the explicitly prohibited uses defined in Article XIV of this Law to be conducted within the Town could negatively impact the quality of water resources within the Town. Water pollution is hazardous to the public health. If a domestic water source is contaminated, remediation is time and cost intensive and may not restore the water resource to a quality acceptable for domestic use.

9. If one or more of the explicitly prohibited uses defined in Article XIV of this Law are conducted within the Town, noise, vibrations, and light caused by the proposed operation could be hazardous or inconvenient to the inhabitants of the Town. Noise, traffic congestion, nighttime lighting, and vibrations can have negative effects on human health and wildlife.

10. The creation, generation, keeping, storage or disposal of Natural Gas and/or Petroleum Extraction, Exploration or Production Wastes within the Town could have a negative impact on the public health, safety and welfare of the inhabitants of the Town.

11. The high costs associated with the disposal of Natural Gas and/or Petroleum Extraction, Exploration or Production Wastes have in other localities resulted, and could in our Town result, in persons seeking to avoid such costs by depositing such material along roadways, in vacant lots, on business sites, in the private dumpsters of others, or in other unauthorized places. Such activities could pose a hazard to the public health, safety, and welfare of the inhabitants of the Town.

12. The explicit proscription of the Explicitly Prohibited Uses set forth in Article XIV of this Law is a legitimate goal of land use laws. There is no question that exclusion of specified industrial uses is a legitimate goal of land use laws:

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As the United States Supreme Court stated in Village of Belle Terre v. Borass, 416 U.S. 1 (1974): the concept of public welfare is broad and inclusive…. The values that it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the [local] legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. 416 U.S. at 6. […] A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one [….] The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people. 416 U.S. at 9.

And see also Matter of Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y. 2d 668 (1996), where the Court of Appeals, New York State’s highest court, evaluated a claim that a Town’s prohibition of mining throughout the Town was in effect unconstitutional ‘exclusionary zoning,’ and held as follows:

We have never held, however, that the … [‘exclusionary zoning’] test, which is intended to prevent a municipality from improperly using the zoning power to keep people out, also applies to prevent the exclusion of industrial uses. A municipality is not obliged to permit the exploitation of any and all natural resources within the Town as a permitted use if limiting that use is a reasonable exercise of its police power to prevent damage to the rights of others and to promote the interests of the community as a whole. 87 N.Y. 2d at 683, 684. (emphasis added.)

______End of Findings.

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16.3 Road Use Law – Text of Chenango County Guide

Chenango County, NY re HVHV/SGD & Road Use Law

Opportunities for Local Government Jurisdiction Over Natural Gas Drilling Operations in New York State223 Strategies Towns may employ include:

The Town Board may establish truck routes for through traffic. Towns wishing to exert jurisdiction over local roads in an attempt to mitigate potential impacts have several options under Section 1660 of the Vehicle Traffic Laws.

1. Develop and maintain an engineering assessment of all roads with written/visual documentation of road surface, drainage, etc. Additional information: Lynne Irwin - (607 255-8033) http://www.clrp.cornell.edu/ 2. Posting roads and establishing weight limits: Sample Weight Limit Law Temporary Spring Weight Restrictions Weight Limits on Town Roads 3. Issuing hauling permits for local roads. (This may be as simple as accepting the NYS DOT hauling permit as the local permit.) 4. Controlling curb cuts through highway 5. work permits. Establishing a Road Preservation Local Law that requires haulers to establish bonds: Town of New Berlin Road Preservation Law Example Road Preservation Law Town of Tusten Resolution Town of Lebanon Road Agreement Road Preservation Use and Repair Agreement Model Town Ordinances for Road Preservation and Protection Considerations for the Protection of Town Highways Sample Road Use Agreement 6. Adopt a highway work permit with special permit conditions that apply to seismic testing. Siesmic Testing Permit Application 7. Noise Ordinances to regulate commercial/industrial noise from temporary noise sources (drill rigs), portable noise sources (portable generators and compressors), permanent non portable noise sources (large generators and compressors at well heads and transmission lines), mobile equipment (earth moving equipment, vibraseis trucks, etc.) Town of Windsor Noise Control Local Law

223http://www.co.chenango.ny.us/planning/natural-gas/nys-drilling.php Chenango County Planning and Development,5 Court St, Norwich, NY 13813, January 21, 2015

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Colorodo Regulations for Oil/Gas Sample Noise Law Samples of Ordinances Clearinghouse Law Library

The Chenango County Planning Department encourages any towns wishing to exercise any of the above strategies to contact this department (337-1640) for additional sample ordinances or contact: NYS Association of Towns (518-465-7933) Cornell Local Roads Program (607-255-8033) The Town Attorney

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16.4 Example: Text of Town of Tusten, NY Road Use Resolution

TOWN OF TUSTEN -- RESOLUTION NO. 91-08

A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TUSTEN ADOPTING A NEW ARTICLE ENTITLED “ADDRESSING ROAD IMPACTS RELATIVE TO NATURAL GAS EXPLORATION, DEVELOPMENT, AND PRODUCTION OF MINERAL, OIL, AND GAS RESOURCES; REQUESTING HOMERULE AUTHORITY FROM THE STATE OF NEW YORK ON IMPLEMENTING ROAD ASSESSMENT FEES, PERFORMANCE BONDS, AND REQUIRING STEEL TANK STORAGE OF FRACING MATERIAL PER WELL SITE TO PROTECT THE HEALTH, SAFETY, AND WELFARE OF THE TOWN.”

WHEREAS, the Town of Tusten is located in Marcellus Shale Field Basin; and WHEREAS, the Marcellus Shale is a deep, fine grained sedimentary rock deposited by a shallow sea and that such Shale is a porous rock that contains hydrocarbons but has practically no permeability; and WHEREAS, due to technological advances and energy related issues, the exploration and production of natural gas in the Marcellus Shale Gas Field has become economically feasible in the recent past; and WHEREAS, oil and natural gas operations include the clearing and leveling of a site, the construction of access roads, potential digging of reserve pits and impacts upon the water supply; and WHEREAS, well stimulation, which is the process of creating or enlarging existing pores to allow gas to more readily reach the producing well, and hydraulic fracturing (“fracing”), associated therewith, includes the use of a fracturing fluid, high pressure, and proponents such as sand; and WHEREAS, drilling and fracing usually involves the use of heavy equipment, including large trucks and related equipment, and often excessive amounts of noise, light, and potential damage to public roads and streets; and WHEREAS, oil and natural gas exploration and operations are exempt from the Federal Clean Air Act, Federal Clean Water Act, Safe Drinking Water Act (SDWA) and exempt from local planning and zoning review under the NYS Environmental Conservation Law, Section New York Environmental Conservation Law (ECL) Section 23-0303; and WHEREAS, the Environmental Conservation Law, Section New York Environmental Conservation Law (ECL) Section 23-0303, preempts towns from regulating land use of Gas and Oil Mining in NYS except over local roads or the rights of local governments under the real property tax law.

NOW, THEREFORE, BE IT RESOLVED BY THE TOWN BOARD OF THE TOWN OF TUSTEN APPROVES THAT ACTION MUST TAKEN TO ADDRESS IMPACTS OF THE HEALTH, SAFETY, AND WELFARE TO THE TOWN:

BE IT FURTHER RESOLVED, that the Town will engage in a road assessment study of impacts

209 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws related to heavy truck traffic with the assistance of the Sullivan County Division of Planning and Environmental Management; and BE IT FURTHER RESOLVED that because gas companies are privileged to be exempt from federal clean air and water acts, federal safe drinking act, and further exempt from local review that a road assessment study will focus on truck traffic related to gas operations as specified under Section New York Environmental Conservation Law (ECL) Section 23-0303 ; and BE IT FURTHER RESOLVED that as the Town pursues a road assessment study in preparation for potential gas drilling that the Town, in conjunction with the Supervisors Association, requests our NYS Assembly and Senate representatives to offer legislation, and/or sponsor a local law, to allow the Town more Home Rule discretion in implementing the results of the road assessment study to collect impact fees, performance bonds prior to the DEC issuing a permit to gas drilling companies; and BE IT FURTHER RESOLVED that additional Home Rule authority is necessary to ensure that the tax burden is not increased or passed on to the residents of the Town due to impacts of the gas industry as it relates to impacts on infrastructure; and BE IT FURTHER RESOLVED that additional Home Rule authority is necessary to require that fracing material be stored in steel tanks per well site to insure the health, safety, and welfare of town residents from flooding and natural disasters which are becoming more frequent in Sullivan County; and BE IT FURTHER RESOLVED that the certified copy of this resolution be filed with the New York State Department of State, Office of the Assembly, Office of the NYS Senate, and the Governor’s Office to convey that necessary action is needed to update New York Environmental Conservation Law (ECL) Section 23-0303 to allow for more local influence in protecting the health, safety, and welfare of town residents.

Adopted by the Town of Tusten Town Board on July 14th, 2008 Kathleen Michell, Town Clerk

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16.5 Example: Text of Town of Tusten, NY Road Use Law

LOCAL ROAD USE AND PRESERVATION LAW LOCAL LAW NO. 1 OF THE YEAR 2012

BE IT ENACTED by the Town Board of the Town of Tusten, County of Sullivan, State of New York, as follows:

Section 1: Legislative Findings and Purpose.

The purpose of this local law is to maintain the safety, health, and general welfare of Town residents by regulating high-impact activities that have the potential to adversely affect roads and public and non-public property. Well-maintained roads are important to the economic well being of the Town, and while certain high-impact construction and maintenance operations, and high impact commercial endeavors, can be economically beneficial, it is known that heavier trucks and equipment, and heavy loads carried by such vehicles, deteriorate the pavement structure at an accelerated rate. Such principles are embodied in documents published by the American Association of State Highways and Transportation Officials (“AASHTO”), which are widely accepted and used throughout the United States. As such, it is the intent of this law to protect Town roads from excess damages caused by frequent passes of heavy trucks.

Accordingly, the Town Board has determined that certain high-intensity traffic associated with large construction projects can damage and significantly reduce the life of Town highways, which must then be repaired at the expense of the Town’s taxpayers. The Town Board has further determined that such damage can be reliably measured using recognized engineering standards published by ASHTO and others. In addition, the Town Board has determined that the strength and capacity of Town highways may in some cases be inadequate to meet the demands of traffic for large construction and high-impact projects and that upgrades to Town highways may be necessary to accommodate such traffic. The Town Board finds that it is in the best interest of the citizens and taxpayers of the Town to have the developers of such large construction and high-impact projects bear responsibility for making any necessary upgrades to Town highways and repairing any damage caused to Town highways at the expense of such developers. The purpose of this local law is to establish a mechanism by which the developers of large construction and high-impact projects that will generate traffic likely to require upgrades or cause damage to Town highways shall ensure that such upgrades are made and such damage is repaired at the developer’s own expense.

Section 2: Authority. This local law is enacted pursuant to the New York State Constitution, Art. 9, § 2(c)(6); New York Vehicle & Traffic Law § 1660; New York Municipal Home Rule Law § 10; New York Statute of Local Governments § 10; New York Highway Law §§ 320 & 326; and New York Town Law § 130.

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Section 3: Definitions. As used in this local law, the following terms shall have the meaning set forth herein:

Baseline Traffic means recurring ambient traffic presented on an annualized basis. It includes typical daily activities on Town Highways (hereinafter defined) such as passenger vehicles, school buses, delivery vehicles, garbage trucks, and normal commuter and business traffic. Baseline Traffic is the cause of normal wear and tear for which a Town Highway is constructed. Baseline Traffic does not include unusual heavy traffic occurring on a temporary basis for such things as Construction Activity (hereinafter defined).

Concentrated Traffic means traffic intended to travel upon or traveling upon Town Highways to or from the site of Construction Activity which (i) is not Baseline Traffic, and (ii) which will exceed the predetermined normal wear and tear thresholds of one or more Town Highways or segments of Town Highways.

Construction Activity means any activity occurring or to occur in or outside of the Town that results in land disturbance or the improvement of a parcel. Evidence of Construction Activity includes, without limitation, those activities which are also being undertaken subject to: Federal permits and approvals including, without limitation, approvals subject to the National Environmental Policy Act and activities subject to the following Nationwide Permits as amended and issued by the U.S. Army Corps of Engineers: Permit 8 (Oil and Gas Structures), Permit 12 (Utility Line Activities), Permit 13 (Bank Stabilization), Permit 16 (Return Water from Upland Contained Disposal Areas), Permit 17 (Hydropower Projects), Permit 21 (Surface Coal Mining Operations), Permit 29 (Residential Developments), Permit 33 (Temporary Construction, Access, and Dewatering), Permit 38 (Cleanup of Hazardous and Toxic Waste), Permit 39 (Commercial and Institutional Developments), and Permit 44 (Mining Activities); or State permits and approvals, including, without limitation: Highway Work Permits; Waste Transporter Permits; SPDES General Permit for Stormwater Discharges from Construction Activity and other SPDES discharge permits; Oil, Natural Gas, and Solution Mining Permits and other mining permits; Overweight/Oversize Vehicle Permits; Authority to Transport Property (Except Household Goods); Divisible Load Overweight Permits; Special Hauling Trip and Annual Oversize/Overweight Loads Permits; LCV/Tandem Trailer Permits; and Special Hauling Permits; or Local permits and approvals, if applicable, including, without limitation: Aquifer Protection Permits, Sludge Disposal Permits, Mining Permits, Gravel Mining Permits, Permits for Well in Aquifer Area, Overweight/Oversize Vehicle Permits, Special Use Permits, zoning changes, and site plan approval.

Person means any person, persons, corporation, partnership, limited liability company, or other entity.

Program Manual means Road Protection Program Manual, Version 2.0 dated February 2012, prepared by Delta Engineers, Architects, & Land Surveyors, P.C., a copy of which is on file and

212 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws available at the Town’s offices located at 104 Main Street, Hortonville, NY 12745.

Technical Manual means Road Protection Program Technical Manual, Version 2.0 dated February 2012, prepared by Delta Engineers, Architects, & Land Surveyors, P.C., a copy of which is on file and available at the Town’s offices located at 104 Main Street, Hortonville, NY 12745.

Town Highway means those roads and highways and related appurtenances of the Town which are owned or maintained by the Town or otherwise exist as Town Highways by dedication or use, including without limitation roadways, shoulders, guide rails, bridges, tunnels, culverts, sluices, ditches, swales, sidewalks, or any utilities or improvements therein, thereon, or thereunder. Town Highway Superintendent means the Superintendent of Highways or his or her designee.

Section 4: Applicability. This local law shall apply to any Person who, individually or in concert with another Person, intends to undertake Construction Activity that will result in Concentrated Traffic on Town Highways.

Section 5: Determination of Whether Proposed Use Constitutes Concentrated Traffic.

A. Any Person identified under Section 4 of this local law shall, prior to undertaking such Construction Activity or allowing, directing, or inducing Concentrated Traffic to travel upon Town Highways, submit a haul route application form and project traffic worksheet to the Town Highway Superintendent in accordance with the forms and procedures set forth in the Program Manual.

B. The Town Highway Superintendent shall review such application and worksheet in accordance with the Program Manual and the Technical Manual. Within no more than thirty (30) days after receipt of a complete haul route application and project traffic worksheet, the Town Highway Superintendent shall notify the applicant whether the use of Town Highways will result in Concentrated Traffic. (1) If the proposed use of Town Highways will not result in Concentrated Traffic, the remaining provisions of this local law shall not be applicable to the applicant. (2) If the proposed use of Town Highways will result in Concentrated Traffic, the applicant must either (a) modify the intended haul route and certify to the Town that no traffic generated by the applicant’s Construction Activity will travel over or upon a Town Highway so that such traffic will not constitute Concentrated Traffic or (b) comply with the provisions of Section 6 of this local law.

Section 6: Requirements for Concentrated Traffic. If the Town Highway Superintendent determines that traffic generated by an applicant’s Construction Activity will result in Concentrated Traffic, the applicant shall be required to comply with the following provisions: A. The applicant shall be required to set forth a haul route declaration as set forth in the Program

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Manual. B. The Town’s engineering consultant shall examine each segment of the proposed haul route in order to: (1) evaluate the Town Highways on the proposed haul route for design, geometric, or health and safety deficiencies, as those deficiencies are defined more fully by the Program Manual; and (2) estimate the costs and procedures necessary to upgrade such Town Highways on the proposed haul route if the Town’s engineering consultant determines that the Town Highways on the proposed haul route must be upgraded to accommodate the applicant’s Concentrated Traffic; and (3) if available, propose an alternate haul route if required due to design deficiencies or if desired by the applicant to minimize estimated upgrade or repair costs to the haul route. C. The Town’s engineering consultant shall design or approve, in conjunction with the Town Highway Superintendent or the Town engineer, all structural, geometric, and roadbed upgrades to Town Highways necessary to accommodate the applicant’s Concentrated Traffic, which upgrades shall be made at the applicant’s expense in accordance with the provisions of paragraph H of this Section 6. An applicant that has completed upgrades to Town Highways in accordance with this paragraph C will not be responsible for repairing Town Highways on the applicant’s haul route provided that the applicant’s actual traffic does not exceed the scope, volume, weight, or trips reported on the applicant’s haul route declaration. D. The Town’s engineering consultant shall conduct all pre-use testing and capacity evaluation of each segment of a haul route that is a Town Highway in accordance with the methods set forth in the Program Manual and the Technical Manual. E. If no upgrades have been required and/or made to the Town Highways on the proposed haul route and the Town’s engineering consultant determines that the applicant’s Concentrated Traffic is expected to cause damage to Town Highways, the Town’s engineering consultant shall provide the Town Highway Superintendent and the applicant with an estimate of the cost to repair such expected damage. Prior to the use of any haul route segment on Town Highways, the applicant shall agree to make all such repairs at the applicant’s expense in accordance with the provisions of paragraph H of this Section 6 (including the posting of appropriate security). If any haul route segment is on a Town Highway that is unpaved or prone to seasonal deterioration, or likely to suffer sudden failure that would impair the safe travel and usage of such Town Highway, the Town Highway Superintendent may require, upon the recommendation of the Town’s engineering consultant, that such Town Highways be subject to weekly monitoring and that any damage be repaired within five (5) days at the applicant’s expense in accordance with the provisions of paragraph H of this Section 6. F. The Town’s engineering consultant shall conduct all post-use testing and damage assessment of each segment of a haul route that is a Town Highway in accordance with the methods set forth in the Program Manual and the Technical Manual. The Town’s engineering consultant shall provide an estimate of the cost of repairing any actual damage to Town Highways caused by the applicant’s Concentrated Traffic. Upon receiving the estimate, the applicant shall make all such repairs at the applicant’s expense in accordance with the provisions of paragraph H of this Section 6. Upon the satisfactory completion of the repairs and the approval of such repairs by the Town Highway Superintendent, any unused security shall be returned to

214 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws the applicant or otherwise released as herein required. G. Any security for performance and/or payment required under this local law shall be in an amount set by the Town Board upon the recommendation of the Town’s engineering consultant. Any such security shall be provided pursuant to a written security agreement with the Town, approved by the Town Board and also approved by the Town Attorney as to form, sufficiency, and manner of execution. At the Town Board’s discretion, the security may be in the form of (i) a performance or payment bond, as applicable, (ii) the deposit of funds with the Town, (iii) an irrevocable letter of credit from a bank authorized to do business in New York State, or (iv) other financial guarantee acceptable to the Town Board. If the Town’s right to collect against any security is contested and the Town prevails, then the applicant shall pay the Town an amount sufficient to reimburse the Town for its reasonable costs and expenses in obtaining a judgment, including attorneys’ fees. H. An applicant shall be permitted to undertake upgrade or repair work only if the Town Highway Superintendent determines that the applicant, or a contractor hired by the applicant, has the capability and experience to make the necessary repairs or upgrades. All work shall be performed pursuant to an agreement in writing between the applicant and the Town, which shall require, among other things, the applicant or its contractor to (i) complete the work in a timely fashion, (ii) post security in accordance with the requirements of paragraph G of this Section 6, (iii) indemnify the Town against all liability stemming from the applicant’s work, and (iv) provide the Town with satisfactory evidence of insurance as determined by the Town, including liability insurance naming the Town as additional insured. All repairs or upgrades to Town Highways shall be made in accordance with the specifications established by the Town Highway Superintendent and must be approved by the Town Highway Superintendent. In addition, the applicant shall comply with all applicable laws and regulations, including without limitation the prevailing wage requirements of New York Labor Law. The applicant or its contractor shall obtain all governmental permits and approvals and obtain any private land rights that are necessary to make any required repairs or upgrades to Town Highways. If the applicant does not wish to make such repairs or upgrades to Town Highways, or is determined by the Town Highway Superintendent not to have the necessary capability to make such repairs or upgrades, then the applicant shall agree in writing to pay the Town for the cost of such repairs or upgrades to Town Highways and post security in accordance with the requirements of paragraph G of this Section 6. I. To the extent permitted by law, the applicant shall defend, indemnify, and hold the Town harmless from all losses resulting from injury or death of persons or damage to property arising from the applicant’s upgrades and repairs to Town Highways. J. If an applicant disagrees with any decision by the Town Board, the Town Highway Superintendent, or the Town’s engineering consultant in the administration of this local law, including without limitation the extent or method of a proposed highway upgrade or repair, any cost imposed upon the applicant, or an estimate of the amount of security to be held by the Town, and the applicant and the Town are unable to resolve their dispute through negotiation, the applicant may make a written request to the Town Board appealing such decision and requesting a public hearing at which the applicant shall have the right to appear and be heard.

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The Town Board shall hold such public hearing not fewer than five (5) days nor more than thirty (30) days after such request. The Town Board may reverse, modify, or affirm, wholly or partly, the decision appealed from and shall make such decision as in its opinion ought to have been made in the matter and, to that end, shall have all the powers of the board, official, or consultant from whose decision the appeal is taken. The Town Board shall issue a determination on the applicant’s request within fifteen (15) days of the public hearing. In view of the Town’s obligation to provide its residents with safe and properly maintained highways, the Town Board’s determination shall be final.

In order to comply with the requirements of this Section 6, an applicant shall have the option of entering into a road use agreement with the Town. A sample form of road use agreement meeting all the requirements set forth herein is attached to and made a part of this local law as Appendix 1. The applicant may ask to modify such form or propose a different form of road use agreement, but any such agreement must be in a form approved by the Town Board and also approved by the Town Attorney as to form, sufficiency, and manner of execution.

Section 7: Deposit of Monies and Payment of Expenses A. The applicant shall pay the Town for all of the Town’s reasonable and necessary expenses in implementing the requirements of this local law, including without limitation the fees of the Town’s engineering consultant in conducting all activities required hereunder and under the Program Manual and Technical Manual and all other legal and consultant expenses. B. Simultaneous with the filing of a haul route declaration, an applicant shall deposit with the Town Supervisor an initial deposit of monies, as determined by a schedule of deposits established from time to time by resolution of the Town Board, which monies shall be used to pay the expenses incurred by the Town in implementing the requirements of this local law. Any schedule of deposits established by the Town Board shall remain in effect and apply to all applicants until amended or revised by subsequent resolution of the Town Board. C. Upon receipt of any deposit, the Town Supervisor shall cause the monies to be placed in a separate non-interest bearing account in the name of the Town and shall keep a separate record of all such monies so deposited in the name of the applicant for whom such monies were deposited. D. Upon receipt and approval by the Town Board of itemized invoices from the Town’s engineering consultant or other consultant or attorney for services rendered and/or costs incurred on behalf of the Town pertaining to the applicant’s activities regulated by this local law, the Town Supervisor shall cause such invoices to be paid out of the monies so deposited and shall debit the separate record of such account accordingly. When submitting invoices to the Town Board, the consultant or attorney shall simultaneously furnish copies of such invoices to the applicant. E. The Town Board shall review and audit all such invoices and shall approve payment of only such expenses as are reasonable in amount and necessarily incurred by the Town in connection with any of the following activities: the evaluation of haul routes; pre-use testing and capacity evaluation of haul routes; design and approval of all structural, geometric, and roadbed upgrades to Town Highways; post-use testing and damage assessment of haul routes; the preparation and

216 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws review of cost estimates for upgrades and repairs; the evaluation of repairs and upgrades made to Town Highways and the maintenance and removal of same; the preparation of recommendations for the amount of security to be posted by an applicant; the preparation and negotiation of road use agreements, security agreements, or other agreements between the Town and an applicant; the enforcement of any such agreement; the collection of or enforcement against any security posted by an applicant; and all other activities performed by consultants and attorneys on behalf of the Town in connection with the application of this local law to a particular applicant. For purposes of the foregoing, an expense is reasonable in amount if it bears a reasonable relationship to the average charge by consultants and attorneys to the Town for performing similar services, and in this regard, the Town Board may take into consideration the length of the haul routes to be evaluated, the condition of the Town Highways under consideration, the extent of the upgrades and repairs to be made to Town Highways, the complexity of the issues addressed by the consultant or attorney, the difficulty of negotiations with an applicant, and any special considerations that the Town Board may deem relevant. An expense is necessarily incurred if it was charged by a consultant or attorney in performing services or providing material in order to: promote, protect, and maintain the safety, health, and general welfare of the public; protect, preserve, and maintain Town Highways; protect the legal interest of the Town including the avoidance of claims and liability; and promote, protect, or preserve such other interests as the Town Board may deem relevant. F. If at any time during the Town’s oversight of an applicant’s activities regulated by this local law there shall be insufficient monies on deposit with the Town to pay approved invoices, or if it shall reasonably appear to the Town Supervisor that such monies will be insufficient to pay anticipated invoices, then the Town Supervisor shall cause the applicant to submit additional sums as the Supervisor deems necessary or advisable in order to meet such expenses. G. In the event that an applicant fails to deposit such monies or additional monies as reasonably requested, the Town Supervisor shall notify, as appropriate, the Town Board and/or Town Highway Superintendent of such failure, and any review or approval under this local law may be withheld until such monies are deposited. The failure to deposit such monies within thirty (30) days after receipt of notice by the Town Supervisor shall constitute a violation of this local law enforceable in accordance with Section 13 of this local law. H. After the cessation of all of applicant’s activities regulated by this local law, and after payment of all approved invoices submitted in connection with such activities, any sums remaining on account to the credit of such applicant shall be returned to such applicant together with a statement of the invoices so paid.

Section 8: Updates to the Program Manual and the Technical Manual. From time to time, updates to the Program Manual and the Technical Manual may be published. The Town Board may from time to time update or replace any manual referenced in this local law by adopting a local law referencing such new or updated manual, and thereafter, the new or updated manual shall be binding on all Persons subject to this local law.

Section 9: Application Fees. The Town Board may establish a schedule of fees relating to applications, approvals, inspections,

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Section 10: General Terms and Conditions. A. No approval issued under this local law, nor any rights granted, nor obligations imposed hereunder or pursuant to any road use agreement may be assigned, conveyed, pledged, or transferred without the express prior written consent of the Town Highway Superintendent. B. Notwithstanding any approval granted under this local law or any rights granted under any road use agreement, all Town Highways shall be kept passable at all times for all motor vehicles, including emergency and public safety vehicles. If any Concentrated Traffic causes damage to any Town Highway such that, in the opinion of the Town Highway Superintendent, such Town Highway is impassable or unsafe for use by the general public, then and in any such event, and regardless of any approval, authorization, or agreement issued or to the contrary, the Town Highway Superintendent may close such Town Highway and/or require that the same be immediately repaired by the applicant or other Person whose use or abuse thereof caused or contributed to the damages or events as gave rise, wholly or partially, to such Town Highway Superintendent’s determination as to closure, damage, safety, or need for repair. C. In granting any approval under this local law or in entering into any road use agreement, the Highway Superintendent or Town Board, as the case may be, may impose conditions relating to seasonal restrictions or the documentation of road conditions or conditions deemed reasonably necessary to promote, protect, and maintain the safety, health, and general welfare of the public. D. In the event that any applicant makes any upgrades or improvements to any Town Highway, the Town reserves the right to require that such improvements be removed at the conclusion of the relevant Construction Activity and that the Town Highway be restored, the extent feasible, to its original dimensions and specifications. All removal and restoration shall be performed in accordance with paragraph H of Section 6 of this local law.

Section 11: Exceptions. The Town Board may by resolution except an applicant from the requirements of this local law provided that the Town Board makes a finding that the Town Highways to be used by the applicant will be adequately protected and any damage to Town Highways will be adequately repaired by virtue of the requirements or conditions imposed upon the applicant in connection with any federal, State, or local permit or approval, including without limitation mitigation measures imposed under the National Environmental Policy Act or the State Environmental Quality Review Act.

Section 12: SEQRA Compliance. A. Before issuing any approval required under this local law or before approving any road use agreement, the Town shall comply with the applicable provisions of the State Environmental Quality Review Act, Article 8 of the New York State Environmental Conservation Law and its implementing regulations set forth in 6 NYCRR Part 617 (collectively referred to as “SEQRA”). B. When required by the Town, an applicant must complete and submit and an Environmental Assessment Form (“EAF”) to the Town. C. For purposes of this local law or for any road use agreement, the following actions have been

218 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws determined not to have a significant impact on the environment and do not require any environmental review under SEQRA as a Type II action: (1) Maintenance or repair of an existing Town Highway involving no substantial changes to the Town Highway; (2) Replacement, rehabilitation or reconstruction of a Town Highway, in kind, on the same site, unless such action meets or exceeds any of the thresholds for a Type 1 action set forth in 6 NYCRR 617.4; (3) Repaving of an existing Town Highway not involving the addition of new travel lanes. (4) Openings in the pavement or right-of-way of a Town Highway for the purpose of repair or maintenance of existing utility facilities; (5) Installation of traffic control devices on existing Town Highways; and (6) Any other actions listed as a Type II actions in SEQRA.

All other actions require compliance with SEQRA.

Section 13: Enforcement and Penalties for Offenses. A. The Town Highway Superintendent and Town police officers are hereby authorized to issue and serve appearance tickets with respect to any violation of this local law. B. All provisions of New York law generally applicable to misdemeanors shall apply to any criminal proceeding brought under this local law, and any violation of this local law shall be deemed and classified as an unclassified misdemeanor. Each week that a violation continues uncorrected or is resumed shall constitute a separate additional violation. A conviction of a first violation is punishable by a fine of not more than $5,000.00 or imprisonment not to exceed three months, or both. A conviction of a second violation occurring within a period of five years is punishable by a fine of not less than $5,000.00 nor more than $10,000.00 or imprisonment not to exceed six months, or both. A conviction of a third or subsequent violation occurring within a period of five years is punishable by a fine of not less than $10,000.00 nor more than $25,000.00 or imprisonment not to exceed nine months, or both. C. In lieu of or in addition to any fine or imprisonment, or both, imposed for a conviction of a violation of this local law, each such violation may be subject to a civil penalty not to exceed $10,000.00 to be recovered in an action or proceeding in a court of competent jurisdiction. Each week that a violation continues uncorrected or is resumed shall constitute a separate additional violation. D. In addition to the foregoing punishments and penalties, the Town Attorney may, at the request of the Town Board, maintain an action or proceeding in the name of the Town in a court of competent jurisdiction to compel compliance with or restrain by injunction any violation of this local law. E. (1) In addition to any penalties or other remedies provided for or allowed herein, the Town Highway Superintendent shall have the right and authority to issue a stop-work order in order to halt any use of or work on one or more Town Highways that is determined by the Town Highway Superintendent to: (a) pose an unreasonable risk to the safety, health, or general welfare of the public, without regard to whether such use of or work on Town Highways has been authorized pursuant to this

219 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws local law or by a road use agreement; or (b) pose a risk of imminent harm to Town Highways, without regard to whether such use of or work on Town Highways has been authorized pursuant to this local law or by a road use agreement; or (c) be contrary to any applicable provision of this local law. (2) All stop-work orders shall be in writing, be dated and signed by the Town Highway Superintendent, state the reason or reasons for issuance, state with specificity the particular use of and/or work on Town Highways that must cease and the particular Town Highways for which the stop-work order is effective, and, where applicable, state the conditions which must be satisfied before the use of or work on such Town Highways shall be permitted to resume. (3) The Town Highway Superintendent shall cause the stop-work order, or a copy thereof, to be served personally or by certified mail on the following Persons, where applicable: (a) the Person who has submitted a haul route declaration to the Town and whose use of or work on Town Highways is the subject of the stop-work order; and (b) the Person who is a party to a road use agreement with the Town and whose use of or work on Town Highways is the subject of the stop-work order; and (c) any identifiable contractor, subcontractor, construction superintendent, hauler, or any of their agents, or any other Person taking part or assisting in the use of or work on Town Highways that is the subject of the stop-work order. (4) Upon the issuance of a stop-work order, all Persons performing, taking part, or assisting in the use of or work on Town Highways that is the subject of the stop-work order shall immediately cease all such use of or work on such Town Highways. The failure to comply with the terms and conditions of a stop-work order issued hereunder shall constitute a violation of this local law. (5) A stop-work order may be rescinded only by the Town Highway Superintendent upon receipt of evidence that the conditions or actions that led to the issuance of the stop-work order have been abated or adequately addressed. Notwithstanding the foregoing, the failure to serve any Person mentioned above shall not affect the validity or effectiveness of the stop-work order. F. The remedies set forth in this Section 13 shall not be the exclusive remedies available to the Town, and the pursuit of any particular remedy shall be in addition to, and not in substitution, or limitation of, the right and authority to pursue any other remedy or other penalty. In addition to the remedies prescribed herein, if any use of Town Highways is made or threatened in violation of the New York Highway Law, the New York Vehicle & Traffic Law, or other local law or ordinance of the Town, the Town Highway Superintendent may, in the name of and on behalf of the Town seek all remedies allowed pursuant to such laws or ordinances.

Section 14: Time to Act. The time periods prescribed herein in which the Town Board, the Town Highway Superintendent, other Town official, or the Town’s engineering consultant shall act are not of the essence and shall not be construed as imposing a limitation on the time to act.

Section 15: Inconsistent Provisions and Repealer. In the event of any inconsistency between the provisions of this local law and the provisions of

220 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws the Program Manual and the Technical Manual, the provisions of this local law shall control. All ordinances, local laws, and parts thereof inconsistent with this local law are hereby repealed. [Note: It is advisable to specifically list any local laws that the Town Board intends to be superseded by this local law.]

Section 16: Severability. If any part or provision of this local law or the application thereto to any Person or circumstance shall be adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part or provision or application directly involved in the controversy in which such judgment shall have been rendered and shall not affect or impair the validity of the remainder of this local law or the application thereof to other Persons or circumstances.

Section 17: Effective Date. This local law shall take effect upon filing with the New York Secretary of State.

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16.6 Example: Text of Town Windsor, NY Noise Law

§ 68-1 NOISE CONTROL § 68-5 CHAPTER 68

§ 68-1. Short Title. § 68-2. Policy. § 68-3. Purposes. § 68-4. Authority. § 68-5. Performance Standards. § 68-6. Definitions. § 68-7. Unreasonable Noise Prohibited. § 68-8. Maximum permissible continuous sound levels. § 68-9. Exceptions. § 68-10. Enforcement and administration. § 68-11. Temporary License. § 68-12. Special Permit. § 68-13. Severability. § 68-14. Effective Date. [History: Adopted on 6-2-2010 as LL #4-2010]

§ 68-1. Short Title. This chapter shall be known and may be cited as the "Town of Windsor Noise Control Local Law."

§ 68-2. Policy. This chapter shall be liberally construed so as to effectuate the purposes described in this chapter. Nothing herein shall abridge the powers and responsibilities of any Police Department or law enforcement agency or code enforcement department to enforce the provisions of this chapter. Nothing herein shall be construed to abridge the emergency powers of any Health Department or code enforcement department or any such departments or agencies to engage in any necessary or proper activities.

§ 68-3. Purposes. The purpose of this chapter is to protect the public health, welfare, safety, peace and tranquility of the residents of the Town of Windsor by regulating noise levels.

§ 68-4. Authority. In accordance with Article 10 of the Municipal Home Rule Law of the State of New York, the Town Board of the Town of Windsor has the authority to enact local laws and amend local laws and for the purpose of promoting the health, safety or general welfare of the Town of Windsor and for the protection and enhancement of its environment. The Town Board of the Town of

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Windsor may include in any such local law provisions for the appointment of any municipal officer, employees, or independent contractor to effectuate, administer and enforce such local law.

§ 68-5. Performance Standards. Property within the geographical boundaries of the Town of Windsor shall be utilized within the limits specified as follows as safeguards and conditions for the protection of the community welfare. Standard methods of collection, measurement and chemical analysis or any method approved by the Town of Windsor, United States Bureau of Standards and Broome County Health Department shall be used in the application of these standards.

§ 68-6. Definitions. A. All terminology defined herein which relates to the nature of sound and the mechanical detection and recording of sound is in conformance with the terminology of the American National Standards Institute (ANSI) or its successor body. B. As used in this chapter, the following terms shall have the meanings indicated: AMBIENT NOISE- The all-encompassing noise associated with a given environment, being usually a composite of sounds from many sources. The calculation or measurement of ambient noise shall subtract any or all noise or sound generated by properties or uses that have been issued a special permit, as prescribed herein. A-WEIGHTED SOUND LEVEL- The sound-pressure level in decibels as measured on a sound level meter using the A-weighted network. The level so read is designated "dBA." CONTINUOUS SOUND- Any sound that is not impulse sound dBA, the abbreviation designating the unit of sound as measured by a decibel level meter using A-weighting, also known as "dB(A)." dBA- The abbreviation designating the unit of sound level as measured by a sound level meter using the A-weighting, also known as "dBA." All references to "decibel" or "dB" shall be presumed to mean "dBA" unless otherwise specified. DECIBEL- The practical unit of measurement for sound pressure level. The number of decibels of a measured sound is equal to 20 times the logarithm to the base 10 of the ratio of the sound pressure of the measured sound to the sound pressure of a standard sound (20 micropascals), abbreviated "dB." EMERGENCY- Any occurrence or circumstances involving actual or imminent physical or property damage which demands immediate action. FREQUENCY- The number of sound pressure oscillations per second, expressed in hertz, abbreviated "Hz." IMPULSE SOUND- Sound characterized by either a single pressure peak or a single burst (multiple pressure peaks) having duration of less than one second. NOISE- Any sounds of such level and duration as to be or tend to be injurious to human health or welfare, or which would unreasonably interfere with the enjoyment of life or property within the Town. PEAK SOUND PRESSURE LEVEL- Maximum absolute value of instantaneous sound pressure level during a specific time interval. PERSON- Any individual, association, partnership, corporation or other entity and includes any

223 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws officer, employee, department or agency of the person. REAL PROPERTY LINE- Either: (1) The imaginary line, including its vertical extension, that separates one parcel of real property from another; or (2) The vertical and horizontal boundaries of a dwelling unit that is one in a multi- dwelling-unit building. SOUND- An oscillation in pressure, particle displacement, particle velocity or other physical parameter, in a medium with internal forces that causes compression and rarefaction of that medium. The description of sound may include any characteristic of such sound, including duration, intensity and frequency. SOUND LEVEL- The weighted sound pressure level obtained by the use of a sound level meter and frequency weighting network, such as A, B, or C as specified in American National Standards Institute specifications for sound level meters (ANSI). If the frequency weighting employed is not indicated, the A-weighting shall apply. SOUND LEVEL METER- Any instrument, including a microphone, amplifier, an output meter, and frequency weighting networks for the measurement of noise and sound levels in a specific manner and which complies with standards established by the American National Standards Institute (ANSI) specifications for sound level meters. SOUND PRESSURE LEVEL- The level of a sound measured in dB units with a sound level meter, which has a uniform ("flat") response over the band of frequencies measured. SOUND SOURCE- Any person, animal, device, operation, process, activity, or phenomenon, which emits or causes sound. VIBRATION- An oscillatory motion of solid bodies of deterministic or random natures described by displacement, velocity or acceleration with respect to a given reference point.

§ 68-7. Unreasonable Noise Prohibited. No person shall make, cause, allow or permit to be made any unreasonable noise upon property, within the geographical boundaries of the Town of Windsor, except as otherwise provided herein.

§ 68-8. Maximum Permissible Continuous Sound Levels. The following general prohibitions regarding continuous sound levels shall apply in determining unreasonable noise. Noise shall be measured as follows: A. The measurement of sound or noise shall be made with a sound level meter meeting the standards prescribed by the American National Standards Institute. B. The slow meter response of the sound level meter shall be used in order to best determine that the average amplitude has not exceeded the limiting noise level. C. Measurement of noise levels shall be made at or beyond the property line of the property on which such noise is generated or perceived, as appropriate, and shall be taken at least four feet from ground level. D. Compliance with the noise limits shall be maintained at all elevations at the boundary of the property. E. Daytime hours shall be between 7:00 a.m. and 10:00 p.m. Nighttime hours shall be between 10:00 p.m. and 7:00 a.m.

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F. The maximum permitted noise or sound levels on property, within the geographical boundaries of the Town of Windsor are: During daytime hours: ambient noise levels plus five (5) dBA. During nighttime hours: ambient noise levels plus three (3) dBA. Additionally, until demonstrated by the applicant or by the Town, ambient noise or sound levels within the Town of Windsor shall be assumed to be 35 dBA. However, in no event shall the allowed noise or sound levels on the property exceed 55 dBA, unless as allowed via a Special Permit. Moreover, noise levels shall be measured as described in this section.

§ 68-9. Exceptions. The provisions of this law shall not apply to: (1) Sounds and vibrations emitted for the purpose of alerting people in emergencies. (2) Sounds created by bells or chimes of religious institutions. (3) Sounds created by any governmental entity, their agents, employees or contractors in the course of its duties (fire districts, , towns, villages, counties, schools, police agencies, etc.). (4) Noise from burglar alarms of any building or motor vehicle. (5) Noise from lawn mowers and related lawn equipment, snowblowers, and snowplows, if working within the parameters as set forth by the Manufacturer. (6) Noise typically associated with residential uses (e.g., air conditioners in good working order, swimming pool filter motors, etc.). (7) Noise created by the normal operation of public and private schools, typically consisting of classes and other school-sponsored activities. (8) Noise generated by municipally sponsored concerts and special events. (9) Noise generated by charitable organizations under the New York State Not-for-Profit Corporation Law. (10) Noise generated by volunteer fire companies in the performance of their duties, drills, and public demonstrations. (11) Noise allowed, pursuant to this chapter by Special Permit issued by the Town Board of the Town of Windsor or by temporary license issue by the Town Clerk of the Town of Windsor. (12) Noise due to emergency repairs, where the repairs are necessary due to actual or imminent physical or property damage which demands immediate action. (13) Sound from a farm, as defined in Section 93-4 or within an Agricultural District Designation that result from construction, repair, day to day activities, and/or emergency work that is done in the pursuit of farming. (14) Noise from emergency generators used during power outages. (15) Construction or modification of a single or two family house or its accessory structure(s) where one of the following has been granted: a Building Permit, Site Plan approval, Broome County Health Department approval, a Driveway Permit from the Town of Windsor Highway Department and/or where the construction or modification of a single or two family house or its accessory structure(s) will be completed within seven (7) calendar days.

§ 68-10. Enforcement and Administration.

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The noise control requirements established herein shall be administered and jointly enforced by the Town enforcement officers and the police agencies of Broome County or officials authorized by the Town Board of the Town of Windsor. Violations may be established upon verbal or written complaint by at least one person, including the enforcement officer. A. Compliance orders. The Code Enforcement Officer is authorized to order in writing the remedying of any condition or activity found to exist in this chapter. Upon finding that any such condition or activity exists, the Code Enforcement Officer shall issue a compliance order. If the condition or activity is not remedied after the issuance of the compliance order, then an appearance ticket may be issued as provided hereinafter. B. Appearance tickets. The Code Enforcement Officer and each inspector are authorized to issue appearance tickets for any violation of the chapter. C. Penalties for offenses. Any person who violates any provision of this chapter shall be deemed guilty of a violation and, upon conviction thereof, shall be subject to penalties in a fine of not less than $50 and not more than $250. D. In addition to those penalties prescribed herein, any person who violates any provision of this chapter shall be liable for a civil penalty of not more than $3,000 for each day or part therefore during which such violation continues. The civil penalties provide by this subsection shall be recoverable in an action instituted in the name of the Town. E. If the violation is of a continuing nature, each eight-hour period during which it occurs shall constitute an additional, separate and distinct offense. F. Injunctive relief. An action or proceeding may be instituted in the name of the Town, in a court of competent jurisdiction, to prevent, restrain, enjoin, correct, or abate any violation of, or to enforce any provision of this chapter. In particular, but not by way of limitation, where there is an violation of this chapter, an action or proceeding may be commenced in the name of the Town, in the Supreme Court or in any other court having the requisite jurisdiction, to obtain an order directing abatement of the condition in violation of such provisions. No action or proceeding described in this subsection shall be commenced without the appropriate authorization from the Town Board of the Town. G. Remedies not exclusive. No remedy or penalty specified in this section shall be the exclusive remedy or penalty available to address any violation described in this chapter. Any remedy or penalty specified in this section may be pursued at any time, whether prior to, simultaneously with, or after the pursuit of any other remedy or penalty specified in this section. H. In addition to the above-provided remedies, the Town Board may also seek reimbursement to the Town for costs incurred by the Town in identifying and remedying each violation, including but not limited to reasonable attorney's fees.

§ 68-11. Temporary License. A. Application for a temporary license. The Town Clerk shall have the authority to grant temporary licenses for limited times and purposes of this chapter. Any person seeking a temporary license pursuant to this section shall file an application with the Town Clerk. The application shall consist of a letter signed by the applicant and shall contain a legal form of verification. Such letter shall contain information, which demonstrates that bringing the source of sound or activity for which the permit is sought into compliance with this chapter would

226 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws constitute an unreasonable hardship on the applicant, on the community or on other persons. In addition, the following information shall be provided: (1) The plans, specifications and any other information pertinent to the source of sound and vibration. (2) The characteristics of the sound and vibration entitled by the source, including but not limited to the sound levels, the presence of impulse sounds or discrete (pure) tones, the day(s) and hours during which such vibration and sound is generated. (3) The noise abatement and control methods used to restrict the emissions of the sound and vibration. (4) A time schedule for the installation of noise abatement and control devices, technology and procedures or process modifications that will be followed to restrict the emissions of sounds and vibrations. (5) The name and address of the applicant and the applicant's agent, if any, and whether the applicant is the owner, lessee, licensee, etc., of the premises. If the applicant is not the owner, the application must contain the written consent of the owner. (6) A filing fee as set by the Town Board, from time to time, via a Resolution. (7) The requested duration of the permit. (8) The hours and days of operation and maintenance.

B. Decision. (1) Upon receipt by the Town Clerk of all information required for the granting of the temporary license, and upon receipt of the appropriate filing fee, the Town Clerk shall issue or deny the temporary license. (2) The Town Clerk shall not issue the temporary license if the requested duration of the permit is in excess of three days. (3) If the Town Clerk denies the application for a temporary license for any reason, the applicant may apply to the Town Board for a Special Permit, following the procedure established below. (4) If the Town Clerk issues a temporary license pursuant to this provision, the temporary license shall be valid for the time requested, but shall be rendered invalid if the actual source of sound authorized under the issued permit, as measured by an enforcement officer, causes a continuous noise level in excess of 80 dB(A) across any real property boundary.

§ 68-12. Special Permit. A. Any person seeking a Special Permit from the Town Board pursuant to this section shall file an application with the Town Clerk. The Special Permit, if granted, shall be valid for a term of 5 years.

B. The application shall consist of a letter signed by the applicant and shall contain a legal form of verification. Such letter shall contain information, which demonstrates that bringing the source of sound or activity for which the Special Permit is sought into compliance with this chapter would constitute an unreasonable hardship of the applicant, on the community or on other persons. In addition, the following information shall be provided:

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(1) The plans, specifications and any other information pertinent to the source of sound and vibration. (2) The characteristics of the sound and vibration emitted by the source, including but not limited to the sound levels, the presence of impulse sounds or discrete (pure) tones, the day(s) and hours during which such vibration and sound is generated. (3) The name and address of the applicant and the applicant's agent, if any, and whether the applicant is the owner, lessee, licensee, etc., of the premises. If the applicant is not the owner, the application must contain the written consent of the owner. (4) The names and addresses of all owners of contiguous land within 500 feet of the premises. (5) A filing fee as set by the Town Board, from time to time, via a Resolution. (6) The requested duration of the Special Permit. (7) Certification that there are no zoning or uniform code violations on the property. (8) The hours and days of operation and maintenance for the activity causing the noise orsound. (9) A Noise Management Plan, the goal of which is to mitigate noise levels and keep the noise levels as low as possible. Such NMP shall include: a) Identification of noise sources; b) Assessment of current and available noise mitigation programs; c) Method of noise measurement; d) Best practices programs; and e) Continuous improvement programs.

C. Public hearing. Upon prior reasonable public notice published in the official newspaper of the Town, and upon a public notice board designated for that purpose by the Clerk for a minimum of 14 days, the Town Board shall hold a public hearing on the Special Permit application. The applicant in like manner shall give notice of the public hearing and application by certified mail, return receipt requested, to all property owners surrounding the sound source site within a radius 500 feet from the borders of said site. The notice to the neighbors shall be deposited in a mailbox at least 21 days prior to the public hearing date. The applicant shall provide an affidavit of mailing, showing proof of mailing to the neighbors as required herein. The applicant’s affidavit of mailing shall become part of the application. Failure to provide notice to the neighbors shall result is automatic denial of the application.

D. Applicant to obtain other necessary permits or variances. This chapter does not preclude the necessity of the applicant to obtain any other approval, permit or variances as required by any other agency or local law before proceeding with an application for a Special Permit. The application for a Special Permit may not be initiated by the applicant until such time that other permits or variances, as may be required, are issued.

E. Decision

(1)In determining whether to grant or deny the application, the Town Board shall apply the following balancing test:

228 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws a)The use possesses characteristics of unique and special form to warrant its consideration as an individual case. b) The location, size of the use and structure, nature and intensity of the operations involved, size of the site in relation to it and the location of the site with respect to the streets giving access to it are such that it will be in harmony with the orderly development of the district. c) The proposed Special Permit will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; including but not limited to odor, light, traffic, etc. d) The use shall not conflict with any Master Plan or part thereof. e) The relief granted must be the minimum required to achieve the use. Best practices as to noise management and operating procedures shall be taken into account when determining what constitutes the minimum required to achieve the use. Noise management considerations should include but is not limited to, mufflers, enclosed buildings, burms, noise barriers, noise insulation, alignment, etc.

(2) The Town Board may consider other factors including, but not limited to the following: a) The sound level of the noise; b) The frequency of the noise; c) Whether the noise is unusual and incongruous with the surrounding environment; d) The sound level and frequency of the ambient noise, if any; e) The use, nature and character of the zoning district of the immediate area where the noise source exists; f) The time of day or night the noise occurs; g) The duration of the noise; h)The intensity of the noise; i) Whether the origin of the noise is associated with nature or with human-made activity, j) The existence of complaints concerning the noise from persons living or working in different places or premises who are affected by the noise and k) Seasonal and prevailing weather; including wind, precipitation and tree cover.

(3) In connection with this section, the Town Board may cause the taking of sound level readings in the event that there shall be any dispute as to the sound levels.

(4) The Town Board shall have the power to impose restrictions, conditions and the recording of covenants upon any sound source site, including time limits on permitted activity in the event that it shall grant any Special Permit hereunder.

(5) The Town Board shall comply with the State Environmental Quality Review Act. If such a SEQRA review is necessary, the Town Board shall be lead agency in that SEQRA review.

(6) The Board, upon reviewing all input from the public hearing and obtaining any additional data or information as deemed necessary, shall then pass or deny the application by resolution. The decision shall be transmitted to the Clerk, who will advise the applicant of such decision by

229 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws transmitting a copy of the Special Permit application to the applicant, with the decision and conditions, if any, imposed by the Town Board attached.

F. Transferability and expiration of Special Permit A Special Permit is not transferable except upon approval by resolution by the Town Board. A Special Permit shall authorize only one use and shall expire if the use ceases for more than three months for any reason. Changes or modifications to the use, including but not limited to changes in noise levels, shall void the Special Permit. Changes or modifications to the use requires a new application pursuant to this Chapter. The Town Board may revoke the Special Permit at any time if the permit holder fails to comply with anysection of this chapter or condition of the Special Permit.

G. The applicant or his agent shall have readily available the approved Special Permit at the location or site for which the Special Permit has been issued and shall show same to any agent of the Town whenever requested.

H. Activity open to inspection. Activity conducted under the Special Permit shall be open to inspection at any time by any agent of the Town.

I. Request for Recertification of the Special Permit

(1) The Special Permit, if granted, shall need to be recertified prior to the five-year anniversary date of the original grant and every five years thereafter. The holder of the Special Permit shall submit a signed written request to the Town Board for recertification between 12 months and 6 months prior to each five-year anniversary date. The application shall include all the information required for the original submission requesting the Special Permit with the additional information: a) The date of the original granting of the Special Permit; b) A statement that use is in compliance with the Special Permit and is in compliance with all applicable statutes, laws, local laws, ordinances, codes, rules and regulations. c) Whether the use has been moved, relocated, rebuilt, repaired or otherwise modified since the issuance of the Special Permit.

2) A filing fee as set by the Town Board, from time to time, via a Resolution.

3) The review shall be an administrative review, not requiring a public hearing or notice to the neighbors.

4) If, after such review, the Town Board determines that the use is in compliance with the Special Permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations, then the Town Board shall issue a recertification of the Special Permit, which may include any new provisions or conditions that are mutually agreed upon, or required by applicable statutes, laws, local laws, ordinances, codes, rules and regulations. If, after such

230 APPPENDIX: Examples of NYS Zoning Amendments and Local Laws review, the Town Board determines that the use is not in compliance with the Special Permit and all applicable statutes, local laws, ordinances, codes, rules and regulations, then the Town Board may refuse to issue a recertification of the Special Permit, and in such event, such use shall not be used after the date that the applicant receives written notice of such decision by the Town Board. Any such decision shall be in writing and supported by substantial evidence contained in a written record.

J. The Board may hire any consultant and/or expert necessary to assist the Town Board in reviewing and evaluating the application and any recertification. (1) The Town requires an applicant to deposit with the Town funds sufficient to reimburse the Town for all reasonable costs of consultant and expert evaluation and consultation to the Town Board in connection with the review of any application. The initial deposit shall be the sum of $5,000. However, the Town Board may, in its discretion reduce said fee upon good cause shown. These funds shall accompany the filing of an application and the Town shall maintain a separate escrow account for all such funds. The Town's consultants/experts shall, in accordance with an agreement between the Town and its consultants or experts, bill or invoice the Town not less frequently than monthly for its services in reviewing the application and performing its duties. If at any time during the review process this escrow account has a balance that shall not reasonably cover the cost of the remaining work of the Town’s consultants/experts, the Town will require applicant to immediately replenish said escrow account in an amount set by the Town, but not to exceed $2,500. Such additional escrow funds must be deposited with the Town before any further action or consideration is taken on the application. If, at the conclusion of the review process, the cost of such consultant/expert services is more than the amount escrowed pursuant hereto, the applicant shall pay the difference to the Town prior to the issuance of any Special Permit. In the event that the amount held in escrow by the Town is more than the amount of the actual billing or invoicing by the Town's consultants or experts, the difference shall be promptly refunded to the applicant.

(2) . A request may be made by the applicant to reduce or eliminate the funds needed for the consultant/expert escrow. After a recommendation by the Attorney for the Town, Engineer for the Town and/or any other consultant/expert engaged by the Town pursuant to this chapter, the Town Board shall review the request and make a determination based upon the scope and complexity of the project, the completeness of the application and other information as may be needed by the Town Board or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as required and requested by the Town, shall be paid by the applicant. The initial amount of the escrow deposit may be established by Town Board upon receipt of information sufficient to make such a determination.

K. Other costs. The applicant seeking the Special Permit and/or Recertification must reimburse the Town all costs associated with the Special Permit, including the cost of the public hearing publication. Such reimbursement may be a condition of granting such Special Permit.

§ 68-13. Severability.

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If any clause, sentence, paragraph, section, or part of this local law shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, section, or part thereof directly involved in the controversy in which such judgment shall have been rendered.

§ 68-14. Effective Date. This local law shall take effect immediately upon filing with the Secretary of State of the State of New York.

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