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SB1220 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1220
 
                               2015-2016 Regular Sessions
 
                    IN SENATE
 
                                     January 9, 2015
                                       ___________
 
        Introduced by Sens. AVELLA, ADDABBO, CARLUCCI, ESPAILLAT, KRUEGER, MONT-
          GOMERY,  RIVERA,  SERRANO  -- read twice and ordered printed, and when
          printed to be committed to the Committee on Environmental Conservation
 
        AN ACT to amend the  environmental  conservation  law,  in  relation  to
          natural gas development using hydraulic fracturing
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Legislative declarations and purpose.  1.  The  legislature
     2  recognizes that the expansion of natural gas development in the state of
     3  New York using hydraulic fracturing poses unique threats to human health
     4  and  to  the  environment.  The  legislature further recognizes that New
     5  York's current laws are inadequate to protect against these threats.
     6    2. As natural gas development expands, it is the highest  priority  of
     7  this  state  to  protect human health as well as to ensure the safety of
     8  irreplaceable natural assets such as safe  drinking  water,  clean  air,
     9  wildlife, and the aesthetic beauty of the state.
    10    3. Hydraulic fracturing utilizes components that are often toxic, that
    11  are  non-biodegradable, and that are virtually impossible to remove once
    12  they enter the natural environment. Many of  these  hazardous  chemicals
    13  are  known  carcinogens  and  others  can  cause  other life threatening
    14  illnesses. Drinking water contamination from  hydraulic  fracturing  can
    15  lead  to  exposure to endocrine disrupting agents and to other chemicals
    16  that can cause kidney, liver,  heart,  blood,  brain  damage  and  other
    17  hazardous health effects.
    18    4.  Hydraulic  fracturing  operations  withdraw millions of gallons of
    19  water from the ground and surface waters  of  the  state,  which  are  a
    20  precious,  finite and invaluable resource, upon which there is likely to
    21  be an ever-increasing demand for present, new and  competing  uses.  The
    22  withdrawal of ground and surface waters of the state should be regulated
    23  in a manner that benefits the people of the state and is compatible with
    24  long-range  water resource planning and with managing such waters in the
    25  public trust for the benefit of all New Yorkers.
    26    5. Hydraulic fracturing operations result in wastewater  that  returns
    27  to the surface laden with salt, heavy metals, other chemicals and radio-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02057-01-5

        S. 1220                             2
 
     1  active  elements.  In  other  states, this wastewater is often stored in
     2  open pits until transported for ultimate disposal.  Chemicals  evaporate
     3  from these open pits, contributing to air pollution. Leaks and spills of
     4  chemicals  from  the  trucks  and  waste pits may cause contamination of
     5  surface waters. Fracturing fluid left underground could migrate or  seep
     6  through   fractures  in  underground  formations,  cracks  in  well-bore
     7  casings, through abandoned wells, or otherwise to  pollute  groundwater.
     8  Given  the  increased  prevalence  of natural gas drilling in the state,
     9  these negative effects may  increase  if  the  process  of  natural  gas
    10  extraction is not carefully and thoughtfully regulated.
    11    6.  One  of  the  chief environmental and infrastructure assets of the
    12  state of New York is its drinking water systems, which play a  fundamen-
    13  tal  role  in  the economic productivity and public health of the state.
    14  The policy of the state with respect to  the  management  of  shale  gas
    15  extraction must be one of zero drinking water risk.
    16    7.  Furthermore,  natural  gas  exploration  must  be carried out in a
    17  manner that is sensitive to the ecological richness and aesthetic beauty
    18  of the state. Widespread, uncontrolled  natural  gas  development  using
    19  hydraulic  fracturing will diminish or destroy the natural beauty of the
    20  land and disrupt the natural habitat of wildlife. The legislature  finds
    21  that  natural  gas  development  must  be  carried out to minimize these
    22  effects to the maximum extent possible.
    23    8. Natural gas extraction can impose both  monetary  and  non-monetary
    24  costs  on  municipalities  and cause property damage or otherwise reduce
    25  the property value of private land owners. It is the  intention  of  the
    26  legislature  that  all  persons who undertake natural gas development in
    27  the state of New York take full responsibility for  their  actions,  and
    28  act consistent with local concerns.
    29    9.  Although  natural gas development provides the promise of economic
    30  benefit for the state of New York, the state must ensure that the  bene-
    31  fits  outweigh the costs. It is the policy of the state that natural gas
    32  development practices will be sustainable, respectful, and safe.    This
    33  act is intended to ensure that goal is met.
    34    §  2.  The  environmental  conservation law is amended by adding a new
    35  section 17-0709 to read as follows:
    36  § 17-0709. Wastewater treatment facilities.
    37    Notwithstanding anything to  the  contrary  contained  in  subdivision
    38  twenty-one  of  section 17-0105 of this article, the commissioner shall,
    39  after holding a public hearing with due notice,  promulgate  regulations
    40  establishing  a standard of performance for the control of the discharge
    41  of pollutants from facilities  which  treat  wastewater  from  hydraulic
    42  fracturing  operations.  This  standard of performance shall reflect the
    43  greatest degree of effluent reduction which the commissioner  determines
    44  to  be achievable through application of the best available demonstrated
    45  control technology, processes, operating methods, or other alternatives,
    46  including, where practicable, a  standard  permitting  no  discharge  of
    47  pollutants.  This  standard  of performance shall remain in effect until
    48  such time that the federal government determines that a  greater  degree
    49  of  effluent limitation is achievable by this category of facilities, at
    50  which time this standard of performance  shall  be  superseded  by  such
    51  federal standard.
    52    § 3. Section 23-0101 of the environmental conservation law, as amended
    53  by chapter 846 of the laws of 1981 and subdivision 1 as amended by chap-
    54  ter 891 of the laws of 1984, is amended to read as follows:
    55  § 23-0101. Definitions.
    56    As used in this article, unless the context otherwise requires:

        S. 1220                             3
 
     1    1.  "Air pollutant" means volatile organic compounds (VOCs) as defined
     2  at 40 CFR 51.100(s), hazardous air pollutants (HAPs) as  defined  at  42
     3  USC  §  7412(b)  and  40  CFR 63, nitrogen oxides (NOX), carbon monoxide
     4  (CO), methane (CH4), ethane (C2H6), particulate matter (PM10 and PM2.5),
     5  ozone  (O3),  lead (Pb), sulfur dioxide (SO2) and other air contaminants
     6  as may be identified by the department.
     7    2. "Best management practices (BMPs)" are practices that are  designed
     8  to  prevent  or  reduce impacts caused by oil and gas operations to air,
     9  water, soil, or biological resources, and to minimize adverse impacts to
    10  public health, safety and welfare, including the environment  and  wild-
    11  life resources.
    12    3.  "Buffer  zone"  means  all  that  area outside and surrounding the
    13  underground gas storage  reservoir  which  the  department  approves  as
    14  appropriate  to protect the integrity of the reservoir, no part of which
    15  shall be more than thirty-five hundred linear  feet  from  the  boundary
    16  thereof.
    17    [2.]  4.  "Cavity"  means an open or partially open space left after a
    18  salt has been solution mined.
    19    [3.] 5. "Closed-loop system" means a system for handling  oil  or  gas
    20  exploration, stimulation, or production wastes, including but not limit-
    21  ed  to  drilling  fluids  and  cuttings,  hydraulic fracturing flowback,
    22  produced water, and residual sludges or brines,  without  the  need  for
    23  pits.
    24    6.  "Commissioner"  means  the commissioner of environmental conserva-
    25  tion.
    26    [4.] 7. "Consequences of any hazardous  discharge"  as  used  in  this
    27  section  means any detrimental effect to the health, safety, welfare, or
    28  aesthetic enjoyment of any citizen, resident, or visitor in the state by
    29  a hazardous discharge.
    30    8. "Department" means the department of environmental conservation.
    31    [5.] 9. "Environmental damage" as used in this  section  means  damage
    32  to:
    33    a. any waters of the state;
    34    b. any land surface or subsurface strata of the state;
    35    c. any ambient air within the state; or,
    36    d.  the  wildlife or ecological systems in the land, air, or waters of
    37  the state.
    38    10. "Fund" means the oil and  gas  [fund  as  established  in  section
    39  eighty-three-a of the state finance law] account established under chap-
    40  ter fifty-eight of the laws of nineteen hundred eighty-two.
    41    [6.]  11.  "Field"  means  the  general  area underlaid by one or more
    42  pools.
    43    [7.] 12. "Gas" means all natural, manufactured, mixed,  and  byproduct
    44  gas, and all other hydrocarbons not defined as oil in this section.
    45    [8.]  13.  "Groundwater"  means  water  in a saturated zone or stratum
    46  beneath the surface of land or water.
    47    14. "Groundwater well" means any well designed or used  for  the  sole
    48  purpose of obtaining groundwater.
    49    15. "Hazardous release" as used in this section means the release of a
    50  hazardous substance.
    51    16.  "Hazardous  substance"  means substances which meet the following
    52  criteria, including but not limited to those listed  in  N.Y.C.R.R.    §
    53  597.2:
    54    a.  because of their quantity, concentration, or physical, chemical or
    55  infectious characteristics cause physical injury or illness when improp-
    56  erly treated, stored, transported, disposed of, or otherwise managed;

        S. 1220                             4
 
     1    b. pose a present or potential hazard to the environment when  improp-
     2  erly treated, stored, transported, disposed of, or otherwise managed;
     3    c.  because  of  their  toxicity  or  concentration  within biological
     4  chains, present a demonstrated threat to  biological  life  cycles  when
     5  released into the environment;
     6    d.  have  an  oral LD (rat) toxicity of less than fifty milligrams per
     7  kilogram; or have an inhalation LC  (rat)  toxicity  of  less  than  two
     8  milligrams per liter; or have a dermal LD (rabbit) toxicity of less than
     9  two hundred milligrams per kilogram; or
    10    e.  cause  or are capable of causing death, serious illness or serious
    11  physical injury to any person or persons as  a  consequence  of  release
    12  into the environment.
    13    17.  "Local  agency"  means any local agency, board, authority, school
    14  district, commission or governing  body,  including  any  county,  city,
    15  town, village or other political subdivision of the state.
    16    [9.]  18.  "Metered"  means  the  physical measurement of gas by means
    17  acceptable to the department.
    18    [10.] 19. "Oil" means crude petroleum oil and all other  hydrocarbons,
    19  regardless  of gravity, that are produced at the wellhead in liquid form
    20  by ordinary production methods and that are not the result of  condensa-
    21  tion of gas.
    22    [11.]  20.  "Oil  and  gas facility" means equipment, improvements, or
    23  physical structures, including any oil or gas wells, used  or  installed
    24  at  an oil and gas location for the exploration, production, withdrawal,
    25  gathering, treatment, or processing of oil or natural gas.
    26    21. "Oil and gas location" means a definable area  where  an  operator
    27  has  disturbed or intends to disturb the land surface in order to locate
    28  an oil and gas facility.
    29    22. "Oil and gas  operations"  means  exploration  for  oil  and  gas,
    30  including  the  conduct  of  seismic operations and the drilling of test
    31  bores; the siting,  drilling,  deepening,  recompletion,  reworking,  or
    32  abandonment  of  an oil and gas well, underground injection well, or gas
    33  storage well; production operations related to any such  well  including
    34  the  installation  of  flowlines  and gathering systems; the generation,
    35  transportation, storage,  treatment,  or  disposal  of  exploration  and
    36  production  wastes;  and any construction, site preparation, or reclama-
    37  tion activities associated with such operations.
    38    23. "Operator" means any person who exercises the right to control the
    39  conduct of, or who conducts, oil and gas operations.
    40    24. "Owner" means the person who has  the  right  to  drill  into  and
    41  produce from a pool or a salt deposit and to appropriate the oil, gas or
    42  salt  he  produces  either  for  himself  or  others, or for himself and
    43  others.
    44    [12.] 25. "Pit" means any natural or man-made depression in the ground
    45  used for the purpose of retaining or storing substances associated  with
    46  oil and gas operations.
    47    26. "Person" means and includes any natural person, corporation, asso-
    48  ciation, partnership, receiver, trustee, executor, administrator, guard-
    49  ian,  fiduciary,  or  other representative of any kind, and includes any
    50  department, agency or instrumentality of the state or any of its govern-
    51  mental subdivisions.
    52    [13.] 27. "Plug and abandon" means the plugging, replugging if  neces-
    53  sary, and abandonment of a well bore including the placing of all bridg-
    54  es, plugs, and fluids therein and the restoration and reclamation of the
    55  surface  in  the immediate vicinity to a reasonable condition consistent
    56  with the adjacent terrain.

        S. 1220                             5
 
     1    [14.] 28. "Pool" means an underground reservoir  containing  a  common
     2  accumulation  of  oil  or gas or both; each zone of a structure which is
     3  completely separated from any other zone in  the  same  structure  is  a
     4  pool.
     5    [15.]  29.  "Potential environmental justice area" means a minority or
     6  low-income community that may bear a disproportionate share of the nega-
     7  tive environmental consequences resulting  from  industrial,  municipal,
     8  and commercial operations or the execution of federal, state, local, and
     9  tribal programs and policies.
    10    30. "Producer" means the owner of a well or wells capable of producing
    11  oil, gas, or salt; or any salt or hydrocarbon mixture.
    12    [16.]  31.  "Product"  means  any  commodity  made from oil or gas and
    13  includes refined crude oil, crude tops, topped crude,  processed  crude,
    14  processed crude petroleum, residue from crude petroleum, cracking stock,
    15  uncracked  fuel  oil,  fuel  oil,  treated crude oil, residuum, gas oil,
    16  casinghead gasoline, natural-gas gasoline, kerosene, benzine, wash  oil,
    17  waste  oil, blended gasoline, lubricating oil, blends or mixtures of oil
    18  with one or more liquid products or by-products derived from oil or gas,
    19  and blends or mixtures of two or more  liquid  products  or  by-products
    20  derived from oil or gas, whether herein enumerated or not.
    21    [17.]  32.    "Release" means any spilling, leaking, pumping, pouring,
    22  emitting,  emptying,  discharging,  escaping,   leaching,   dumping   or
    23  discharging  into the environment (including the abandonment or discard-
    24  ing of barrels, containers, and other closed receptacles).
    25    33. "Reservoir" means any underground reservoir, natural or artificial
    26  cavern or geologic dome, sand or  stratigraphic  trap,  whether  or  not
    27  previously occupied by or containing oil or gas.
    28    [18.] 34. "Salt" means sodium chloride, evaporite or other water solu-
    29  ble  minerals,  either in solution or as a solid or crystalline material
    30  in a pure state or as a mixture.
    31    [19.] 35.  "Site" means the location of any   oil and  gas  operation,
    32  including  but  not  limited to wells and well pads, storage facilities,
    33  natural gas compressor stations, and centralized impoundments.
    34    36. "Solution mining" means the dissolving of an underground  salt  by
    35  water to produce a brine for transport to another underground or surface
    36  location for sale, processing or storage.
    37    [20.]  37.    "Surface water" means any water occurring on the Earth's
    38  surface in the form of a stream,  river,  pond,  lake,  wetland,  ocean,
    39  artificial channel or reservoir, or other surface water body.
    40    38. "Waste" means
    41    a. Physical waste, as that term is generally understood in the oil and
    42  gas industry;
    43    b.  The  inefficient, excessive or improper use of, or the unnecessary
    44  dissipation of reservoir energy;
    45    c. The locating, spacing, drilling, equipping, operating, or producing
    46  of any oil or gas well or wells in a manner which  causes  or  tends  to
    47  cause  reduction  in  the  quantity of oil or gas ultimately recoverable
    48  from a pool under prudent and proper  operations,  or  which  causes  or
    49  tends  to  cause unnecessary or excessive surface loss or destruction of
    50  oil or gas;
    51    d. The inefficient storing of oil or gas; and
    52    e. The flaring of gas produced from an oil or  condensate  well  after
    53  the department has found that the use of the gas, on terms that are just
    54  and reasonable, is, or will be economically feasible within a reasonable
    55  time.

        S. 1220                             6
 
     1    § 4. Section 23-0303 of the environmental conservation law, as amended
     2  by chapter 846 of the laws of 1981, is amended to read as follows:
     3  § 23-0303. Administration of article.
     4    1.  Except  to  the  extent that the administration of this article is
     5  specifically entrusted to other agencies or officers of the state by its
     6  provisions, such administration shall be by the department.   Geological
     7  services  for  the  department  in connection with the administration of
     8  this article shall be provided by or in cooperation with the state geol-
     9  ogist. Within appropriations therefor the department  is  authorized  to
    10  employ such personnel as may be necessary for the administration of this
    11  article  and may also employ or secure the services of such engineering,
    12  technical and other consultants as it may require from time to time.
    13    2. The provisions of this article shall supersede all  local  laws  or
    14  ordinances  relating  to  the  regulation  of  the oil, gas and solution
    15  mining industries; [but shall not supersede local  government  jurisdic-
    16  tion  over local roads or the rights of local governments under the real
    17  property tax law] provided, however, that nothing in this article  shall
    18  be construed to prevent any local government from:
    19    a.  Enacting or enforcing local laws or ordinances of general applica-
    20  bility, except that such local laws or ordinances shall not regulate oil
    21  and gas operations regulated by state statute or regulation; or
    22    b. Enacting or enforcing local laws or ordinances related to the regu-
    23  lation and management of local roads, such  as  ingress  and  egress  to
    24  public thoroughfares controlled by the local government; or
    25    c.  Enacting or enforcing laws pursuant to the rights of local govern-
    26  ments under the real property tax law; or
    27    d. Enforcing any requirement contained in any oil or gas permit issued
    28  by the state; or
    29    e. Enacting or enforcing local zoning ordinances or laws  that  deter-
    30  mine permissible uses in zoning districts, including whether oil and gas
    31  facilities are permissible within a particular zoning district. Where an
    32  oil  and  gas  facility  is  designated  a  permissible  use in a zoning
    33  district and allowed by special use permit, conditions  placed  on  such
    34  special use permits shall be limited to the following:
    35    i. Requirements and conditions concerning setback from property bound-
    36  aries,  surface  waters, groundwater wells, homes or private residences,
    37  churches, schools, and other public facilities, and public  thoroughfare
    38  rights-of-way;
    39    ii.  Requirements and conditions concerning natural or man-made barri-
    40  ers to restrict access from oil and gas facilities, if required; and
    41    iii. Dust, noise, vibration, or light limitations, and  regulation  of
    42  hours of operation.
    43    3. Notwithstanding any provision to the contrary, local laws and ordi-
    44  nances  regulating  zoning,  including conditions in special use permits
    45  that impose setbacks, the requirement of natural or manmade barriers, or
    46  limitations on dust, noise, vibration, light, or hours of operation,  do
    47  not  constitute  the  regulation  of oil and gas operations regulated by
    48  state statute or regulation.
    49    4. In order to facilitate a municipality's  ability  to  exercise  its
    50  authority  under  paragraph  d  of  subdivision two of this section, the
    51  department shall provide every municipality with a copy of the permit of
    52  each well located or permitted to be located within its boundaries.
    53    [3.] 5. a. The commissioner shall accept from municipalities  requests
    54  for  funds  from  the oil and gas fund to reimburse the municipality for
    55  costs incurred in repairing damages to municipal land or property.  Such

        S. 1220                             7
 
     1  requests  shall  include  such explanatory material and documentation as
     2  the commissioner may require.
     3    b.  The commissioner and director of the budget, may recommend payment
     4  to the municipality to satisfy the request for reimbursement upon  find-
     5  ing that:
     6    (1)  The  municipality  has made a bona fide effort to seek relief and
     7  recover its costs from those deemed to  be  responsible  and  any  other
     8  appropriate avenues, but has been unsuccessful;
     9    (2)  The damage was a direct result of activities regulated under this
    10  article and that the amount of funds requested is reasonable in view  of
    11  such damages; and
    12    (3)  The costs were incurred after the effective date of this subdivi-
    13  sion.
    14    § 5. Paragraph d of subdivision 8 of section 23-0305 of  the  environ-
    15  mental  conservation law, as amended by chapter 846 of the laws of 1981,
    16  is amended to read as follows:
    17    d. Require the drilling, casing, operation, plugging and replugging of
    18  wells and reclamation of surrounding land in accordance with  rules  and
    19  regulations  of  the  department  in such manner as to prevent or remedy
    20  [the following] any act resulting in environmental damage, including but
    21  not limited to: the escape of oil, gas, brine or water out of one  stra-
    22  tum  into  another;  the intrusion of water into oil or gas strata other
    23  than during enhanced recovery operations; the pollution of  fresh  water
    24  supplies  by oil, gas, salt water, drilling fluids, hydraulic fracturing
    25  fluids or other contaminants; and blowouts, cavings, seepages and fires.
    26  Such rules and regulations shall regulate the type, volume, and  concen-
    27  tration of additives for the protection of human health and the environ-
    28  ment;  and such regulations shall prohibit the use of drilling fluids or
    29  hydraulic fracturing fluids containing any chemical substance that  upon
    30  exposure,  ingestion,  inhalation  or  assimilation  into  any organism,
    31  either directly from the environment, including from drinking water,  or
    32  indirectly through food chains, will, on the basis of information avail-
    33  able  to the department, cause death, disease, behavioral abnormalities,
    34  cancer, genetic mutations, endocrine disruption, physiological  malfunc-
    35  tions, including malfunctions in reproduction, or physical deformations,
    36  in  such  organisms  or  their  offspring, including but not limited to:
    37  benzene and any chemical substance that has been identified pursuant  to
    38  the  Federal Toxic Substances Control Act as persistent, bioaccumulative
    39  and toxic.
    40    § 6. Section 23-0305 of the environmental conservation law is  amended
    41  by adding a new subdivision 15 to read as follows:
    42    15.  The  department shall promulgate regulations requiring disclosure
    43  of chemicals used in oil and gas well drilling and hydraulic fracturing,
    44  including but not limited to the following requirements:
    45    a. No permit to drill, deepen, plug back, or convert a well  shall  be
    46  issued  under  this article until the department obtains from the permit
    47  applicant a complete list of the chemical constituents of each  additive
    48  that  may  be  used  in drilling or fracturing the well specified in the
    49  application;
    50    b. Whenever the department or a treating physician  or  nurse,  deter-
    51  mines that a medical emergency exists as a result of oil or gas explora-
    52  tion, stimulation, or production activities conducted by a well drilling
    53  permit  holder or its subcontractors and that the disclosure of proprie-
    54  tary chemical information, including the identity of any chemical or the
    55  formula of any additive used in drilling or hydraulic  fracturing  of  a
    56  permitted  oil  or gas well, may be necessary for emergency or first-aid

        S. 1220                             8
 
     1  treatment, the well drilling  permit  holder  or  any  subcontractor  in
     2  possession  or  control of the proprietary information shall immediately
     3  disclose the proprietary information requested to the department or that
     4  treating  physician  or  nurse, regardless of the existence of a written
     5  statement of need or a confidentiality agreement.  The permit holder  or
     6  subcontractor  may  request  a written statement of need and a confiden-
     7  tiality agreement as soon thereafter as  circumstances  permit.  In  the
     8  event  the  permit holder or subcontractor fails to immediately disclose
     9  such proprietary information, the department shall make available  to  a
    10  treating physician or nurse all information within its possession relat-
    11  ing  to  the  ingredients of any chemical or the formula of any additive
    12  used in drilling or hydraulic fracturing utilized in a permitted oil  or
    13  gas well suspected of causing such emergency;
    14    c.  Each  permit  holder shall notify the department of any changes to
    15  the chemical constituents used in drilling or fracturing  prior  to  the
    16  fluid's use in the drilling or fracturing process.
    17    d.  The  department shall make any disclosures filed under paragraph a
    18  or c of this subdivision available to the public  and  shall  post  such
    19  information on the department's website.
    20    §  7. Section 23-0313 of the environmental conservation law is amended
    21  by adding four new subdivisions 3, 4, 5 and 6 to read as follows:
    22    3. The department shall promulgate regulations requiring:
    23    a. Oil and gas well owners or operators to give notice to the  depart-
    24  ment,  local  health  department  and  responding emergency agencies, in
    25  person or by such means as the  department  shall  specify,  immediately
    26  after  the release of any fuel, hazardous chemical or waste stored at or
    27  generated by an oil and gas facility or used in well drilling or hydrau-
    28  lic fracturing operations.
    29    b. Notice required under paragraph a of this subdivision shall include
    30  each of the following (to the extent known at the time of the notice and
    31  so long as no delay in responding to the release results):
    32    i. The chemical name or identity of  any  substance  involved  in  the
    33  release; and
    34    ii.  An  estimate  of  the  quantity  of  any  such substance that was
    35  released into the environment; and
    36    iii. The time and duration of the release; and
    37    iv. The medium or media into which the release occurred; and
    38    v. Any known or anticipated acute or chronic health  risks  associated
    39  with the release and, where appropriate, advice regarding medical atten-
    40  tion necessary for exposed individuals; and
    41    vi. Proper precautions and remedial actions to take as a result of the
    42  release; and
    43    vii.  The  name  and  telephone  number of the person or persons to be
    44  contacted for further information.
    45    c. As soon as practicable after a release that requires  notice  under
    46  paragraph  a of this subdivision, such owner or operator shall provide a
    47  written follow-up emergency notice  (or  notices,  as  more  information
    48  becomes  available)  setting forth and updating the information required
    49  under paragraph b of this subdivision, and including:
    50    i. Actions taken to respond to and contain the release;
    51    ii. Any known or anticipated acute or chronic health risks  associated
    52  with the release; and
    53    iii. Advice regarding medical attention necessary for exposed individ-
    54  uals.

        S. 1220                             9
 
     1    d.  The  department  shall  post all chemical spill report information
     2  referenced in paragraphs a, b and c of this subdivision on  the  depart-
     3  ment's website.
     4    4.  The  department  shall  promulgate rules and regulations requiring
     5  that owners or operators of wells give written  notice  to  all  persons
     6  residing within one half mile of any proposed well site two weeks before
     7  drilling  or  hydraulic fracturing operations begin. Owners or operators
     8  of wells shall publish a notice in a local newspaper circulating in  the
     9  area  of  the  proposed well site two weeks before drilling or hydraulic
    10  fracturing operations begin. Within two business days of  giving  notice
    11  under this section, a list of recipients and a copy of all notices, with
    12  proof of delivery in compliance with this section, shall be submitted to
    13  the  department for inclusion in the drilling permit file. Copies of all
    14  notices shall be publicly available.
    15    5. The department shall develop maps of all known oil and  gas  wells,
    16  including  active  and  abandoned  wells, in New York using a geographic
    17  information system and make those maps system publicly available on  the
    18  department's website.
    19    6.  The  department  shall create and operate an emergency 1-800 tele-
    20  phone number for public use in identifying  and  reporting  any  oil  or
    21  natural gas-related incidents to the department.
    22    §  8.  The  environmental  conservation law is amended by adding a new
    23  section 23-0315 to read as follows:
    24  § 23-0315. Best management practices.
    25    1. The commissioner shall not permit any owner or operator to commence
    26  operations to drill, deepen, plug back or convert a  well  for  explora-
    27  tion,  production,  storage or disposal unless such operations implement
    28  best management practices.
    29    2. The commissioner shall include all applicable best management prac-
    30  tices as conditions of each  permit  to  drill,  deepen,  plug  back  or
    31  convert a well.
    32    3.  Every three years, after holding a public hearing with due notice,
    33  the commissioner shall publish an inventory of best management practices
    34  that may be included as special conditions of permits  for  natural  gas
    35  drilling,  depending upon site-specific analysis of a proposed well site
    36  and available control technologies. Any best management  practices  that
    37  may  be  applied  to  all drilling permits shall be promulgated as regu-
    38  lations in compliance with the requirements of the state  administrative
    39  procedure act.
    40    §  9.  The  environmental  conservation law is amended by adding a new
    41  section 23-0317 to read as follows:
    42  § 23-0317. Liability.
    43    1. Liable parties. The following persons shall be liable under  subdi-
    44  vision two of this section:
    45    a. the owner of an oil and gas facility or pipeline;
    46    b. the operator of an oil and gas facility or pipeline;
    47    c.  any  person  who by contract, agreement, or otherwise arranged for
    48  the transport of oil or gas, or for the transport, disposal,  or  treat-
    49  ment  of  a hazardous substance used in oil or gas operations, including
    50  hazardous hydraulic fracturing fluid or any hazardous components  there-
    51  of; and,
    52    d.  any person who accepts any hazardous substance used in oil and gas
    53  operations for recycling, disposal, or treatment.
    54    2. Liability. Any liable party mentioned in subdivision  one  of  this
    55  section shall be liable for any environmental damage from, or the conse-
    56  quences  of  any  hazardous release from, an oil and gas facility, well-

        S. 1220                            10
 
     1  bore, pipeline, or from any storage or disposal area for oil, gas, or  a
     2  hazardous substance used in oil or gas operations including:
     3    a.  all  costs  of removal or remedial action incurred by the state or
     4  any subdivision thereof;
     5    b. any other necessary costs of response or mitigation incurred by any
     6  other person authorized by the state to respond to the contamination  or
     7  mitigate the effects thereof;
     8    c.  damages  for  injury  to,  destruction  of,  or  loss  of  natural
     9  resources, including the reasonable  costs  of  assessing  such  injury,
    10  destruction, or loss resulting from such a release; and,
    11    d.  all direct costs proximately caused by the environmental damage or
    12  the consequences of any hazardous release to private parties,  including
    13  but not limited to damage to property owned by such parties or injury to
    14  personal health or welfare.
    15    3.  Limitation  of  liability.  Nothing  in  this  section  should  be
    16  construed as limiting the liability of any liable  party  identified  in
    17  subdivision  one of this section as against any private party in a civil
    18  action.
    19    4. Natural resources liability. a. In  the  event  of  an  injury  to,
    20  destruction of, or loss of natural resources under paragraph c of subdi-
    21  vision two of this section, liability shall be to the state of New York;
    22  provided,  however,  that no liability to the state of New York shall be
    23  imposed under paragraph c of subdivision two of this section, where  the
    24  party  sought to be charged has demonstrated that the damages to natural
    25  resources complained of were specifically identified as an  irreversible
    26  or  irretrievable  commitment  of  natural resources in an environmental
    27  impact statement, or other comparable environmental  analysis,  and  the
    28  decision  to  grant  a  permit  or license authorizes such commitment of
    29  natural resources, and the facility or project was  otherwise  operating
    30  within the terms of its permit or license.
    31    b.  The  commissioner,  or  another  representative  authorized by the
    32  governor of New York, shall act on behalf of the public  as  trustee  of
    33  such  natural  resources  to recover for such damages. Sums recovered by
    34  the commissioner as trustee under this subsection shall be  retained  by
    35  the  trustee,  without  further  appropriation, for use only to restore,
    36  replace, or acquire the equivalent of such natural resources. The  meas-
    37  ure  of  damages  in  any action under paragraph c of subdivision one of
    38  this section shall not be limited by the  sums  which  can  be  used  to
    39  restore or replace such resources.
    40    5.  Financial  responsibility.  a.  Any owner or operator of a well or
    41  wells must, before commencement of operations, post a liability bond  or
    42  hold liability insurance coverage for each well owned or operated.
    43    b.  The  liability  bond  or insurance required by paragraph a of this
    44  subdivision shall be in such form as the department by regulation  shall
    45  require and in such amount as the department shall deem to be reasonably
    46  sufficient  to  correct,  repair  or  remedy  to the satisfaction of the
    47  department any environmental damage  or  hazardous  discharge  resulting
    48  from oil or gas exploration or production.  However, for wells less than
    49  two  thousand  five  hundred  feet in depth or length, a minimum of five
    50  thousand five hundred dollars per well will be required to satisfy  this
    51  section  and  for  wells  between two thousand five hundred feet and six
    52  thousand feet in depth or length, ten thousand five hundred dollars  per
    53  well  will be required. Wells greater than six thousand feet in depth or
    54  length and for which hydraulic fracturing  fluid  shall  be  used,  will
    55  require  that  the operator provide additional financial security of two
    56  hundred fifty thousand dollars,  provided  however  the  department  may

        S. 1220                            11
 
     1  require an additional bond or financial security in an amount sufficient
     2  to  cover  potential  remediation costs associated with contamination of
     3  the environment.
     4    c.  The  liability  bond  or insurance required by paragraph a of this
     5  subdivision shall be held for the duration of operations.
     6    d. After operations have ceased, any owner or operator of  a  well  or
     7  wells  shall  post a liability bond or hold liability insurance for each
     8  well owned or operated.
     9    e. The liability bond or insurance required by  paragraph  d  of  this
    10  subdivision  shall be in such form as the department by regulation shall
    11  require and in such amount as the department shall  deem  sufficient  to
    12  correct,  repair,  or  remedy  to the satisfaction of the department any
    13  environmental damage or hazardous discharge resulting from  movement  of
    14  any hazardous substance from the plugged or permanently abandoned well.
    15    f.  The  liability  bond  or insurance required by paragraph d of this
    16  subdivision shall be held for one hundred years after the well has  been
    17  plugged or permanently abandoned.
    18    g.  Nothing in this section shall affect the requirements of paragraph
    19  e of subdivision three of section 23-1101 of this article.
    20    6. Definition of natural resources. "Natural  resources"  as  used  in
    21  this  section  means  land,  fish,  wildlife,  biota, air, water, ground
    22  water, drinking water supplies, and other such resources  belonging  to,
    23  managed  by,  held in trust by, appertaining to, or otherwise controlled
    24  by the state of New York.
    25    § 10. The environmental conservation law is amended by  adding  a  new
    26  section 23-0505 to read as follows:
    27  § 23-0505. Oil and gas facility location requirements.
    28    1.  Minimum setbacks. No oil and gas facility, well-bore, pipeline, or
    29  storage or disposal area for oil, gas, or a hazardous substance used  in
    30  oil  or  gas operations shall be located within two thousand feet of any
    31  surface waters, groundwater well, home or private residence (including a
    32  nursing home), school, church, day care facility, or health care facili-
    33  ty.
    34    2. Subsurface lands. For the  purposes  of  subdivision  one  of  this
    35  section,  the  setbacks  applicable  to  any surface waters, groundwater
    36  well, home or private residence  (including  a  nursing  home),  school,
    37  church,  day  care facility, or health care facility shall also apply to
    38  the land directly below those areas, including any subsurface strata.
    39    3. Contamination prevention. a. Spills, well  leaks,  and  contaminant
    40  flow from targeted formation.
    41    (1)  The  well pad of any oil or gas well located within one-half mile
    42  of any surface waters must be surrounded by a  protective  berm  with  a
    43  water  detention  capacity of at least twenty-five thousand gallons. The
    44  department may require a protective berm to have  a  detention  capacity
    45  greater  than  twenty-five thousand gallons if the department determines
    46  it is necessary to protect surface waters from contamination.
    47    (2) The department shall  require  a  site-specific  analysis  of  the
    48  topography, geology, and hydrogeology of all proposed oil and gas facil-
    49  ities  or  pipelines. This analysis should include identification of all
    50  potential pathways and receiving waters for  spills  from  the  site  to
    51  reach surface waters.
    52    (3)  The  department  shall  require  the  development  of groundwater
    53  contour and vertical gradient maps of the geological formation from  the
    54  target  formation  to  the  ground  surface prior to approval of any gas
    55  drilling permit.

        S. 1220                            12
 
     1    (4) The department shall promulgate regulations identifying topograph-
     2  ical and geologic and hydrogeologic conditions, including but not limit-
     3  ed to steep slopes between the well pad and surface waters; proximity to
     4  impaired waterways identified by the  state  of  New  York  pursuant  to
     5  section  303(d)  of  the  federal Clean Water Act; conditions that would
     6  permit sudden spills to  reach  surface  waters  before  containment  is
     7  possible;  or  any  other  conditions  that  would  increase the risk of
     8  surface or groundwater contamination or further degradation that require
     9  setbacks larger than those specified in subdivision one of this  section
    10  or denial of a well drilling permit.
    11    (5)  As  a condition of any permit granted pursuant to section 23-0501
    12  of this title for any well subject to setback requirements, the  depart-
    13  ment shall establish setbacks sufficient to protect human health and the
    14  waters of the state.
    15    b.  Monitoring requirements. (1) All oil or gas wells must be equipped
    16  with a monitoring device or devices installed to detect any  contaminant
    17  movement from the oil or gas well in the direction of any groundwater or
    18  groundwater well.
    19    (2)  The  department shall promulgate regulations establishing a moni-
    20  toring program to detect any contaminant movement from  an  oil  or  gas
    21  facility. The regulations shall provide, at a minimum, that:
    22    (i) monitoring shall occur no less often than quarterly;
    23    (ii)  groundwater  monitoring  shall  commence at or near the proposed
    24  well site at least three hundred sixty-five days before drilling  begins
    25  to  provide  a water quality baseline that accounts for seasonal changes
    26  in water quality;
    27    (iii) monitoring shall continue for the duration of  operations  until
    28  fifty  years  after  operations  have ceased or the oil and gas well has
    29  been plugged or permanently abandoned;
    30    (iv) the monitoring device or devices used to detect contaminant move-
    31  ment shall reflect the best technology available for such monitoring;
    32    (v) monitoring shall be conducted for one or more actual  constituents
    33  of drilling and fracturing fluids used at each proximate site; and
    34    (vi)  screen  lengths,  monitoring well density and monitored aquifers
    35  shall be based upon a conceptual flow model, developed on the  basis  of
    36  all available or new data, as appropriate, to detect a leak or migration
    37  of  any  contamination  so  as  to maximize the possibility of detection
    38  prior to contamination of any drinking water source.
    39    § 11. The environmental conservation law is amended by  adding  a  new
    40  section 23-0507 to read as follows:
    41  § 23-0507. Exclusion areas.
    42    1.  The  department  shall  identify  specific areas with determinable
    43  boundaries in which any oil and gas facilities,  well-bores,  pipelines,
    44  or storage or disposal areas for oil, gas, or a hazardous substance used
    45  in oil or gas operations will be prohibited. These areas shall include:
    46    a. the area around and including the New York city watershed;
    47    b.  the  area around and including any water system that has received,
    48  at any point in time, a  filtration  avoidance  determination  from  the
    49  United States Environmental Protection Agency;
    50    c. any area overlying a sole source aquifer;
    51    d.  any  other  area identified by the department as necessary for the
    52  protection of drinking water resources;
    53    e. any area identified as a  critical  habitat  for  a  threatened  or
    54  endangered  species under section four of the federal Endangered Species
    55  Act (42 U.S.C. § 1533) or any area identified  as  a  "natural  heritage
    56  area" under section 11-0539 of this chapter;

        S. 1220                            13
 
     1    f.  any  area identified by the department as a bird conservation area
     2  or any other critical bird habitat for the protection  of  migratory  or
     3  non-migratory birds;
     4    g. all floodplains; and,
     5    h.  all  areas  within any New York state park, forest preserve, state
     6  forest, wildlife refuge, wildlife management area, or wilderness area.
     7    2. For any areas identified in paragraph a or b of subdivision one  of
     8  this section the department shall identify an additional area around the
     9  primary drinking water resource in which oil and gas operations shall be
    10  prohibited in order to ensure adequate protection of such resource.
    11    3. For any areas identified in paragraphs a, b, c, or e of subdivision
    12  one  of  this  section  the department shall add an additional exclusion
    13  buffer of no less than one-half mile in which any oil  and  gas  facili-
    14  ties,  well-bores, pipelines, or storage or disposal areas for oil, gas,
    15  or a hazardous substance used in oil or gas operations will be prohibit-
    16  ed.
    17    4. All areas identified in subdivision one of  this  section  and  the
    18  exclusion  buffer  areas  identified  in subdivision two of this section
    19  shall include all the land located directly below those areas, including
    20  all levels of subsurface strata.
    21    5. The department may also identify any other exclusion area  for  the
    22  protection  of  any  natural  resource  as defined in subdivision six of
    23  section 23-0317 of this article or for the health,  safety,  or  general
    24  welfare of any citizen, resident, or visitor in the state of New York.
    25    §  12.  The  environmental conservation law is amended by adding a new
    26  section 23-0509 to read as follows:
    27  § 23-0509. Prohibition on waste storage pits or impoundments.
    28    Pits and other impoundments, whether or not lined, shall not  be  used
    29  for on-site or off-site collection or storage of any oil or gas explora-
    30  tion,  stimulation,  or  production wastes, including but not limited to
    31  drilling fluids and cuttings, hydraulic  fracturing  flowback,  produced
    32  water,  and residual sludges or brines remaining after on-site treatment
    33  of oil or gas wastes for reuse or recycling. All oil or gas exploration,
    34  stimulation, or production wastes shall  be  collected  and  stored  and
    35  retrievable  at  all  times in closed-loop systems. The department shall
    36  promulgate minimum standards for closed-loop systems  for  oil  and  gas
    37  waste collection, storage, and retrieval.
    38    §  13.  Section  23-1903  of  the  environmental  conservation law, as
    39  amended by section 1 of part R1 of chapter 62 of the laws  of  2003,  is
    40  amended to read as follows:
    41  § 23-1903. Imposition  of  oil,  gas  and solution mining regulation and
    42               reclamation fees.
    43    1. When a permit is granted to a person by the department pursuant  to
    44  section  23-0305  of  this  article  to  drill  a  well or when a person
    45  converts a well to one subject to the oil, gas and solution mining  law,
    46  such person shall pay to the department:
    47    a.  A one hundred dollar fee to be credited to the oil and gas account
    48  established under chapter fifty-eight of the laws  of  nineteen  hundred
    49  eighty-two; and
    50    b.  A  fee in accordance with the depth and length drilled or expected
    51  to be drilled as set forth below:
    52       0-  500ft. - [$  190] $ 250
    53     501- 1000ft. - [$  380] $ 500
    54    1001- 1500ft. - [$  570] $ 750
    55    1501- 2000ft. - [$  760] $1000
    56    2001- 2500ft. - [$  950] $1250

        S. 1220                            14
 
     1    2501- 3000ft. - [$1,140] $1500
     2    3001- 3500ft. - [$1,330] $1750
     3    3501- 4000ft. - [$1,520] $2000
     4    4001- 4500ft. - [$1,710] $2250
     5    4501- 5000ft. - [$1,900] $2500
     6    5001- 5500ft. - [$2,090] $2750
     7    5501- 6000ft. - [$2,280] $3000
     8    6001- 6500ft. - [$2,470] $3250
     9    6501- 7000ft. - [$2,660] $3500
    10    7001- 7500ft. - [$2,850] $3750
    11    7501- 8000ft. - [$3,040] $4000
    12    8001- 8500ft. - [$3,230] $4250
    13    8501- 9000ft. - [$3,420] $4500
    14    9001- 9500ft. - [$3,610] $4750
    15    9501-10,000ft.- [$3,800] $5000
    16    over 10,000ft.- [$3,800]  $5000  plus [$190] $250 for each incremental
    17  500 feet of depth or length over 10,000 feet.
    18    A person who has paid the fees described shall not be required to  pay
    19  any  additional  fee  for a well conversion.  The fee for well deepening
    20  permits pertaining to wells for which a well drilling permit was  issued
    21  after  August twenty-fifth, nineteen hundred eighty-one, shall be calcu-
    22  lated on the basis of the additional depth or length drilled.
    23    In the event the actual depth drilled exceeds the depth expected to be
    24  drilled, an additional amount shall be paid such that the total fee paid
    25  shall be in accordance with the schedule set forth in this paragraph.
    26    2. The department shall review the fee schedules  set  forth  in  this
    27  section  prior  to  September  first  of  each year. The figures will be
    28  adjusted up or down annually by  the  previous  twelve  month  inflation
    29  factor.  The inflation factor is based upon the United States Department
    30  of Labor, Bureau of Labor Statistics data published in the  monthly  CPI
    31  Detailed  Report.  The  data  will  be taken from the most recent report
    32  available on July first of each year and the actual percentage used will
    33  be the past year percent change for the U.S. city  average,  all  items,
    34  all urban consumers.
    35    3.  Upon  requesting  from  the department any determination under the
    36  Natural Gas Policy Act, such person shall  pay  a  [fifty]  one  hundred
    37  dollar fee per well for each such determination.
    38    §  14.  Article 23 of the environmental conservation law is amended by
    39  adding a new title 29 to read as follows:
    40                                  TITLE 29
    41                                CITIZEN SUITS
    42  Section 23-2901. Actions to enforce laws  on  pollution,  impairment  or
    43                     destruction  of  environment,  or to protect environ-
    44                     ment; dismissal of frivolous actions.
    45  § 23-2901. Actions  to  enforce  laws  on   pollution,   impairment   or
    46                destruction  of  environment,  or  to protect environment;
    47                dismissal of frivolous actions.
    48    1. Any person may commence a civil action  in  a  court  of  competent
    49  jurisdiction  against any other person alleged to be in violation of any
    50  statute, regulation or ordinance which is designed to prevent,  minimize
    51  or  control pollution, impairment or destruction of the environment. The
    52  action may be for injunctive or other equitable relief to compel compli-
    53  ance with a statute, regulation or ordinance, or to assess civil  penal-
    54  ties  for  the violation as provided by law. The action may be commenced
    55  upon an allegation that a person is in violation, either continuously or

        S. 1220                            15
 
     1  intermittently, of a statute, regulation or ordinance, and that there is
     2  a likelihood that the violation will recur in the future.
     3    2.  Except  in those instances where the conduct complained of consti-
     4  tutes a violation of a statute, regulation  or  ordinance  which  estab-
     5  lishes a more specific standard for the control of pollution, impairment
     6  or  destruction  of  the  environment,  any  person may commence a civil
     7  action in any court of competent jurisdiction for declaratory and  equi-
     8  table relief against any other person for the protection of the environ-
     9  ment,  or the interest of the public therein, from pollution, impairment
    10  or destruction occurring in violation, either continuously or  intermit-
    11  tently, of this article.
    12    3.  The  court  may, on the motion of any party, or on its own motion,
    13  dismiss any action brought pursuant  to  this  act  which  on  its  face
    14  appears to be patently frivolous, harassing or wholly lacking in merit.
    15    §  15.  Article 23 of the environmental conservation law is amended by
    16  adding a new title 31 to read as follows:
    17                                  TITLE 31
    18                          HEALTH IMPACT ASSESSMENT
    19  Section 23-3101. Preparation of health impact assessment.
    20  § 23-3101. Preparation of health impact assessment.
    21    1. No permit shall be issued under section  23-0501  of  this  article
    22  until  the  department of health has completed the health impact assess-
    23  ment described in subdivision two of this section and the department has
    24  adopted regulations and implemented any mitigation measures  recommended
    25  in  the health impact assessment. The purpose of a health impact assess-
    26  ment is to provide detailed information about the  effect  oil  and  gas
    27  operations  are  likely  to  have on public health, to identify measures
    28  that could be implemented to minimize any adverse effects of such  oper-
    29  ations,  and to suggest alternatives to such an action so as to form the
    30  basis for a decision whether or not to undertake or approve such  activ-
    31  ities.
    32    2.  The department of health shall prepare, or cause to be prepared by
    33  contract or otherwise, a comprehensive health impact assessment  of  oil
    34  and  gas  operations  involving any shale formation, including all oper-
    35  ations related and incident thereto, which may have an adverse impact on
    36  public health.
    37    a. Such an assessment shall include a detailed statement setting forth
    38  the following:
    39    i. a description of the operations;
    40    ii. the public health impact of the operations,  including  short-term
    41  and long-term effects;
    42    iii. whether an operation occurs in, or disproportionately will impose
    43  negative health impacts upon a potential environmental justice area, and
    44  if so, the identity of such area;
    45    iv. any adverse public health effects that cannot be avoided;
    46    v.  alternatives  to  the oil and gas operations generally or alterna-
    47  tives to any aspect related  or  incident  thereto  which  may  have  an
    48  adverse impact on public health;
    49    vi. mitigation measures proposed to minimize the public health impact;
    50    vii.  any  such other information consistent with the purposes of this
    51  article as may be prescribed in guidelines issued by the commissioner.
    52    b. The department of health shall first issue a  draft  health  impact
    53  assessment that satisfies the requirements of paragraph a of this subdi-
    54  vision.  The draft should resemble in form and content the health impact
    55  assessment to be prepared after comments have been received and  consid-
    56  ered.

        S. 1220                            16
 
     1    3. The draft assessment shall be filed with the department.
     2    a.  The department and the department of health shall solicit comments
     3  from the public and federal, state, regional and local  agencies  having
     4  an  interest in the assessment. The comment period shall last no shorter
     5  than ninety days.
     6    b. The draft assessment shall be posted on the department of  health's
     7  and the department's websites.
     8    4.  After  the  filing  of a draft health impact assessment either the
     9  department of health or the department shall determine whether or not to
    10  conduct a public hearing on the public health impact of the oil and  gas
    11  operations.  If  either agency determines to hold such hearing, it shall
    12  commence the hearing within sixty days of the filing unless the proposed
    13  action is withdrawn from consideration.
    14    5. If no hearing is held, the agency shall prepare and make  available
    15  the  final  health impact assessment. The final assessment shall include
    16  copies or a summary of the substantive comments received by  the  agency
    17  pursuant to subdivision four of this section, and the agency response to
    18  such comments.
    19    6.  The  health impact assessment together with all comments, shall be
    20  filed with the commissioner, made available to the public, and posted on
    21  a publicly-available internet website upon issuance.
    22    7. When an agency decides to carry out or approve an action which  has
    23  been  the  subject  of  this  health impact assessment, it shall make an
    24  explicit finding that the requirements of this section have been met and
    25  that to the maximum extent practicable, adverse  public  health  impacts
    26  revealed  in  the  health impact assessment process will be minimized or
    27  avoided.
    28    8. Where the department of  health  concludes  or  the  health  impact
    29  assessment  indicates  that  the  oil  and gas operations, or operations
    30  related or incident thereto, occur in, or disproportionately will impose
    31  negative health impacts upon a potential environmental justice area, the
    32  department of health shall require a site specific health impact assess-
    33  ment. That assessment shall conform to the  requirements  set  forth  in
    34  subdivision two of this section, and the department of health shall make
    35  regulations specifying additional requirements which shall apply to site
    36  specific assessments. No permit shall be issued under section 23-0501 of
    37  this  article  in  any  area  subject  to  a site specific health impact
    38  assessment until the site specific health  impact  assessment  has  been
    39  completed  and  the  mitigation  measures  suggested  therein  have been
    40  adopted. The department of health may require  a  site  specific  health
    41  impact assessments in any other circumstances it deems advisable.
    42    §  16.  Article 23 of the environmental conservation law is amended by
    43  adding a new title 33 to read as follows:
    44                                  TITLE 33
    45                           AIR QUALITY MONITORING
    46  Section 23-3301. Air quality monitoring.
    47  § 23-3301. Air quality monitoring.
    48    Within six months of the enactment  of  this  section  the  department
    49  shall:
    50    1.  Prepare  a  draft  air quality testing and monitoring plan for all
    51  areas of current or potential oil and gas operations in New York  state.
    52  The  draft  plan  shall  be  subject to public review, including but not
    53  limited to notice and a comment period of  at  least  thirty  days.  The
    54  draft and final plan shall incorporate the following minimum provisions:
    55    a.  Mandatory  baseline testing of air quality and air pollutant emis-
    56  sions throughout the oil and gas development region of New  York  state,

        S. 1220                            17
 
     1  including  emissions  from  both mobile and stationary air contamination
     2  sources involved in oil and gas operations, as  defined  in  subdivision
     3  five of section 19-0107 of this chapter;
     4    b. Deployment of a sufficient number of air quality monitoring devices
     5  within  the oil and gas development region to ensure prompt detection of
     6  any violations of air quality standards;
     7    c. Delineation of oil and gas development subregions within  New  York
     8  state, based on the airsheds for each regulated pollutant emitted by oil
     9  and  gas  facilities;  preparation  of cumulative impact analyses of air
    10  emissions in each subregion, including emissions from  all  natural  gas
    11  compressor  stations; and development of standards and regulatory proce-
    12  dures for control of compressor station emissions;
    13    d. Development of procedures and a schedule for the regular monitoring
    14  and reporting of air quality and air pollutant density  within  each  of
    15  the subregions;
    16    e. Mandatory posting of such reports on the department's website;
    17    f.  Establishment  of  procedures for appropriate responses, including
    18  emergency responses, to violations of air quality standards.
    19    2. In the final air quality testing and monitoring plan,  the  depart-
    20  ment  shall  respond to all substantive comments timely submitted on the
    21  draft plan.
    22    3. No permit shall be issued under section  23-0501  of  this  article
    23  until  thirty  days  after  notice of the final plan is published in the
    24  Environmental Notice Bulletin.
    25    4. No permit shall be issued under section 23-0501 of this article, if
    26  air emissions from the permitted operation would cause or contribute  to
    27  a violation of any air quality standard.
    28    § 17. Section 27-0903 of the environmental conservation law is amended
    29  by adding a new subdivision 4 to read as follows:
    30    4.  Uniform treatment of waste. Notwithstanding any other law or regu-
    31  lation to the contrary, all waste resulting from the exploration, devel-
    32  opment, extraction or production of crude oil or natural gas,  including
    33  but not limited to drilling fluids and produced waters, shall be consid-
    34  ered  hazardous  waste  under  the  law of this state and subject to all
    35  pertinent generation, transportation, treatment, storage,  and  disposal
    36  laws  and  regulations,  if such waste meets the definition of hazardous
    37  waste set forth in subdivision three of section 27-0901 of this chapter.
    38  Within six months from the  effective  date  of  this  subdivision,  the
    39  department  shall  make  all  necessary changes to bring its regulations
    40  into compliance with this section.
    41    § 18.   The opening paragraph of paragraph  f  of  subdivision  1  and
    42  subdivision  6 of section 15-1503 of the environmental conservation law,
    43  the opening paragraph of paragraph f of subdivision  1  as  amended  and
    44  subdivision  6  as added by chapter 401 of the laws of 2011, are amended
    45  to read as follows:
    46    a description of the applicant's proposed near  term  and  long  range
    47  water conservation program that [incorporates] must comply with environ-
    48  mentally  sound  and  economically feasible water conservation measures,
    49  including implementation and enforcement  procedures,  effectiveness  to
    50  date  and  any  planned modifications for the future. For a public water
    51  supply system, the water conservation program may include but  need  not
    52  be limited to:
    53    6.  A  new  permit  for  a  water withdrawal system and any subsequent
    54  renewal thereof shall be valid for a period of time not to exceed  [ten]
    55  five  years  from the date of issuance. A new permit or permit modifica-

        S. 1220                            18
 
     1  tion must be obtained from the  department  prior  to  any  transfer  or
     2  change of ownership of a water withdrawal system.
     3    §  19.  The  environmental conservation law is amended by adding a new
     4  section 15-1531 to read as follows:
     5  § 15-1531. Reporting.
     6    The commissioner shall, within two years of the effective date of this
     7  section, and thereafter as often as the commissioner deems  appropriate,
     8  report to the governor and the legislature on the implementation of this
     9  title. The report may include but need not be limited to recommendations
    10  for  modifications to this title, including but not limited to modifica-
    11  tions to the threshold volume provided  in  this  title  for  particular
    12  water sources, watersheds, water bodies or regions, where the department
    13  has  determined  that  such  water  sources, watersheds, water bodies or
    14  regions are in need of special  protection  because  of  the  nature  or
    15  volume  of  demands  made  upon  them and a modification is necessary to
    16  protect the public health, safety and welfare.
    17    § 20. Article 15 of the environmental conservation law is  amended  by
    18  adding a new title 35 to read as follows:
    19                                   TITLE 35
    20                             WATER USE STANDARDS
    21  Section 15-3501. Water use standards.
    22  § 15-3501. Water use standards.
    23    The  department shall adopt rules establishing water use standards for
    24  maintaining in-stream flows that are  protective  of  aquatic  life  and
    25  other  uses  and that establish criteria for designating watersheds most
    26  at risk from cumulative water use. Standards adopted under this  section
    27  must be based on the natural variation of flows and water levels, allow-
    28  ing for variances if use will still be protective of water quality with-
    29  in that classification.
    30    §  21.  Article 72 of the environmental conservation law is amended by
    31  adding a new title 8 to read as follows:
    32                                   TITLE 8
    33                      WATER SUPPLY PERMIT PROGRAM FEES
    34  Section 72-0801. Definitions.
    35          72-0802. Water supply permit program fees.
    36  § 72-0801. Definitions.
    37    When used in this title:
    38    1. "Agricultural purpose" shall  mean  the  practice  of  farming  for
    39  crops,  plants, vines and trees; and the keeping, grazing, or feeding of
    40  livestock for sale of livestock or livestock products.
    41    2. "Public water supply purpose" shall mean  water  use  by  a  public
    42  water supply system.
    43    3. "Water supply permit program" means those activities of the depart-
    44  ment  as  specified  in title fifteen of article fifteen of this chapter
    45  related to the withdrawal  of  waters  of  the  state  and  any  related
    46  enforcement activities.
    47  § 72-0802. Water supply permit program fees.
    48    1.  Except  as otherwise provided in this title, all persons, except a
    49  political subdivision of the state, or an  agency,  department,  bureau,
    50  public  authority  of  the  state,  or persons making withdrawals for an
    51  agricultural purpose who are to obtain a permit pursuant  to  the  water
    52  supply permit program shall submit annually to the department a fee, for
    53  each water withdrawal system, in an amount to be determined as follows:
    54    a. fifty dollars for a water withdrawal system with a capacity of less
    55  than one million gallons per day, used primarily for public water supply
    56  purposes;

        S. 1220                            19
 
     1    b.  one hundred twenty-five dollars for a water withdrawal system with
     2  a capacity of between one million and nine million nine hundred  ninety-
     3  nine  thousand  nine hundred ninety-nine gallons per day, used primarily
     4  for public water supply purposes;
     5    c.  two  hundred  fifty  dollars  for a water withdrawal system with a
     6  capacity of ten million gallons per day  or  more,  used  primarily  for
     7  public water supply purposes;
     8    d.  two  hundred  fifty  dollars  for a water withdrawal system with a
     9  capacity of between fifty thousand and ninety-nine thousand nine hundred
    10  ninety-nine gallons per day, for any and all uses which are not primari-
    11  ly for agricultural or public water supply purposes;
    12    e. five hundred fifty dollars for a water  withdrawal  system  with  a
    13  capacity  of  between one hundred thousand and one hundred thousand nine
    14  hundred ninety-nine gallons per day, for any and all uses which are  not
    15  primarily for agricultural or public water supply purposes;
    16    f.  one thousand dollars for a water withdrawal system with a capacity
    17  of between two hundred fifty thousand gallons and four  hundred  ninety-
    18  nine  thousand nine hundred ninety-nine gallons per day, for any and all
    19  uses which are not primarily for agricultural  or  public  water  supply
    20  purposes;
    21    g.  two  thousand  five  hundred dollars for a water withdrawal system
    22  with a capacity of  between  five  hundred  thousand  gallons  and  nine
    23  hundred  ninety-nine  thousand nine hundred ninety-nine gallons per day,
    24  for any and all uses which are not primarily for agricultural or  public
    25  water supply purposes;
    26    h. five thousand dollars for a water withdrawal system with a capacity
    27  of  between  one million and nine million nine hundred ninety-nine thou-
    28  sand nine hundred ninety-nine gallons per day,  for  any  and  all  uses
    29  which  are  not  primarily  for  agricultural  or  public  water  supply
    30  purposes;
    31    i. seven thousand five hundred dollars for a water  withdrawal  system
    32  with  a  capacity  of  between  ten  million and forty-nine million nine
    33  hundred ninety-nine thousand nine hundred ninety-nine gallons  per  day,
    34  for  any and all uses which are not primarily for agricultural or public
    35  water supply purposes;
    36    j. ten thousand dollars for a water withdrawal system with a  capacity
    37  of fifty million gallons per day or more, for any and all uses which are
    38  not primarily for agricultural or public water supply purposes.
    39    2.  For  the  purpose  of  determining the appropriate fee required by
    40  subdivision one of this section, the  amount  of  reclaimed  wastewater,
    41  which  a  person withdraws for reuse, shall not be included in the total
    42  capacity of the water withdrawal.
    43    3. All fees collected pursuant to this article shall be paid into  the
    44  environmental  conservation  special  revenue  fund to the credit of the
    45  environmental regulatory account.
    46    § 22. This act shall take effect immediately;  provided  that  section
    47  twenty  of this act shall take effect upon the completion of rule-making
    48  required in subdivision  2  of  section  15-1501  of  the  environmental
    49  conservation law and provided that the commissioner of the department of
    50  environmental  conservation  shall  notify the legislative bill drafting
    51  commission upon the occurrence of the enactment of  the  rules  required
    52  under subdivision 2 of section 15-1501 of the environmental conservation
    53  law  in  order  that  the commission may maintain an accurate and timely
    54  effective data base of the official text of the laws of the state of New
    55  York in furtherance of effectuating the provisions of section 44 of  the
    56  legislative law and section 70-b of the public officers law.
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