The state Department of Environmental Conservation on Friday signaled it anticipates missing a little-noticed deadline for its proposed hydraulic fracturing regulations — a move that would force the agency to restart its rule-making process and reopen the regulations to public comment.
Missing the deadline would further cloud the already murky situation surrounding the state’s decision on high-volume fracking, which is currently not allowed in New York as the DEC continues an environmental review that has stretched on for more than four years.
In an email, DEC spokeswoman Emily DeSantis said a newly expanded review of the health effects of hydrofracking for natural gas will likely cause the agency to miss a late November deadline.
“Given that DEC has said no regulations or final decision will be issued until the completion of (Health Commissioner Nirav Shah’s) review, should high-volume hydraulic fracturing move forward, it is expected that a new rule-making process would be undertaken,” DeSantis wrote.
Last year, DEC officials proposed formal regulations to govern the natural-gas industry that would carry the force of law. The agency held a set of public hearings afterward, the last of which was held on Nov. 30.
Under state law, the DEC has one year after holding its last public hearing to finalize the regulations, though it can file for a 90-day extension. If it misses the deadline, the rule-making process restarts, complete with a new comment period. The deadline was first reported Thursday by the blog Shale Gas Review.
The rule-making process is separate from the DEC’s overarching environmental review, known as the Supplemental Generic Environmental Impact Statement. That review, which was first launched in July 2008 and contains thousands of pages of proposed guidelines for gas-drilling permits, would not have to be restarted if the November deadline is blown.
The DEC announced last year that it planned to issue formal regulations as a way to bolster the recommendations in the environmental impact statement.
Commissioner Joseph Martens said last year that the agency would move to issue permits if the environmental impact statement was completed before the rules were finalized. But now that is uncertain.
Asked if the DEC stands by Martens’ assertion last year, DeSantis said: “It is undetermined.”
Most proposed regulations require a comment period of at least 45 days under state law. A new round of public response would undoubtedly bring in thousands of comments. Response periods in 2009 and 2011 garnered a total of about 80,000 formal comments, according to the DEC.
Most of the submissions were in response to the DEC’s environmental impact statement. The flood of responses considerably lengthened the agency’s review of hydrofracking.
Thomas West, an Albany-based attorney and lobbyist representing several oil and gas companies, said missing the deadline doesn’t necessarily mean further delay.
“The failure to complete the rule-making in a timely fashion or starting a new one should not be an impediment to moving forward in New York if and when — hopefully sometime in my lifetime — they finally finish the process,” West said.
Friday’s decision is the latest ambiguity on hydrofracking in New York.
The DEC last week announced that it has asked the state Department of Health to review its study of hydrofracking, which involves the use of water, sand and chemicals mixed together and injected underground to break apart gas-rich shale formations. The announcement came after environmental groups had criticized the agency for not taking a closer look at potential health impacts associated with the gas-extraction process.
Katherine Nadeau, water and natural resources program director for Environmental Advocates of New York, welcomed the news that DEC may restart the regulation-crafting process.
“From our point of view, beginning a new public process based on the results of the Department of Health’s health impact review is exactly the right approach that Governor (Andrew) Cuomo and the DEC should take,” she said. “They should not issue any permits until the health impact review and the public process is concluded.”
Informed of the DEC’s comments, New York State Petroleum Council Executive Director Karen Moreau said the gas industry retains its confidence in the Cuomo administration.
“Certainly any hint at delay is something that doesn’t help the state’s economic picture, but as far as whether or not this is going to affect the ultimate outcome, I can’t say that,” Moreau said. “We feel very confident that the process is going to unfold as it should, the health review will be done and a determination will be made at that point.”