NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6922
SPONSOR: Colton (MS)
TITLE OF BILL: An act to amend the environmental conservation law and
the public health law, in relation to assigning liability to a producer
for actions leading to a public water system's failure to meet filtra-
tion avoidance criteria
PURPOSE OR GENERAL IDEA OF BILL: To assign liability to a producer for
actions taken during the exploration, drilling or development of wells
that produce oil, gas, salt or hydrocarbon mixture, which result in an
adverse impact on a public water system.
SUMMARY OF SPECIFIC PROVISIONS: Section 1. The environmental conser-
vation law is amended by adding a new section 23-0315.
Subdivision (1) assigns producer liability with regards to actions
performed or completed during the course of exploration, drilling or
development of wells that produce, oil, gas, salt or hydrocarbon
mixture, that directly result in a public water system failing to meet
all of the existing filtration avoidance criteria established by 40
Subdivision (2) stipulates that violators shall be held liable for civil
penalties and damages associated with the violation.
Subdivision (3) allows the commissioner to issue an order to suspend
drilling operations whenever a violation involving this section occurs.
Provides legal recourse for an aggrieved party through the issuance of
an order to show cause.
Section 2. The public health law is amended by adding a new section
1110. Subdivisions (1), (2) and (3) are added to conform to the new
section 23-0315 of the environmental conservation law, as it relates to
the protection of potable water supplies.
JUSTIFICATION: New York State has been generously endowed with water
resources which have contributed and continue to contribute greatly to
the position of preeminence attained by New York in population, agricul-
ture, commerce, trade, industry and outdoor recreation. It is the sover-
eign power to regulate and control the water resources of this state
ever since its establishment has been and now is vested exclusively in
the state of New York, except to the extent of any delegation of power
to the United States.
New York Stare is home to the largest unfiltered fresh water aquifer in
the country. The Delaware/Catskill watershed supplies 90% of the potable
water used in New York City; essentially half of the state's population
receives its drinking water from this system. In 1993 the U,S. Environ-
mental Protection Agency (US EPA) granted New York City an exemption
from having to filter the water coming from the Delaware/Catskill
system, in exchange for New York City's compliance with a strict
watershed control program.
New York City has invested about $2 billion in system maintenance and
land acquisition in order to create buffer zones between the watershed
and human activities that could be detrimental to the water system.
Federal regulations regarding the exemption specifically state that a
watershed control program must, "Monitor the occurrence of activities
which may have an adverse effect on source water quality. The public
water system must demonstrate through ownership and/or written agree-
ments with landowners within the watershed that it can control all human
activities which may have an adverse impact on the microbiological qual-
ity of the source water."
Both the City of New York and the Department of Environmental Protection
(NYCDEP) have expressed grave concerns regarding the prospect of drill-
ing in the Delaware/Catskill watershed and how it may affect New York
City being able to retain the Filtration Avoidance Determination (PAD).
The failure to obtain an extension of the FAD would require New York
City to build a filtration plant for the Delaware/Catskill system which
is estimated so exceed $10 billion, with an annual operating cost of S
100 million. This would create a tremendous burden on ratepayers, whom
already face exorbitant costs for water use.
The fact that federal regulations state a public water system coming
under the exemption must monitor human activities which "may" cause an
adverse impact, is a great concern. Water contamination has been
confirmed in Sublette County, Wyoming and just recently in the neighbor-
ing state of Pennsylvania, where the state is seeking $440,000 in
damages resulting from a waste pit that had a tar in the lining, leading
to black fluid to seep into a nearby stream. This does not account for
the 1,000 other cases of contamination in Colorado, New Mexico, Alabama,
and Ohio. In the case of New Mexico, a survey documenting water contam-
ination coming from unlined pits led to the state placing a one-year
moratorium on drilling around Santa Fe, despite legal action taken by
companies with active leases.
To say that there has never been or will never be water contamination
resulting from the gas extraction process is an obfuscation of the
facts. According to an article printed in the Ithaca Journal on November
8, 2009, over 270 drilling accidents involving wastewater spills, well
contamination, explosions, methane migration and ecological damage have
occurred in New York State in relation to gas production since 1979.
Even if this represents a small percentage of accidents in proportion to
successful drilling operations, New York City, and other municipalities
currently holding onto a FAD, do not have the luxury of allowing human
activities to occur within their respective watershed(s) when an acci-
dent "may" happen.
The state has borne great costs in clean-up and plugging operations of
previous wells that were left by unscrupulous extraction companies. If
an outright ban cannot be implemented due to constitutional constraints
over ownership of mineral rights, than it is the duty of New York State
to put in place other mechanisms to protect potable water supplies and
discourage development in environmentally sensitive areas. It is esti-
mated that of the 500 trillion cubic feet of natural gas trapped in the
Marcellus Shale, that only 10% is recoverable. That amounts to only
about 2 years of natural gas supply for the entire country at current
consumption levels. We must evaluate our willingness to jeopardize our
potable water for short-term gain and use our prescience in the priori-
tization of natural resources.
PRIOR LEGISLATIVE HISTORY: New bill.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK
2011-2012 Regular Sessions
April 6, 2011
Introduced by M. of A. COLTON, MAISEL, STEVENSON, SCARBOROUGH, ROBERTS
-- Multi-Sponsored by -- M. of A. SCHIMEL -- read once and referred to
the Committee on Environmental Conservation
AN ACT to amend the environmental conservation law and the public health
law, in relation to assigning liability to a producer for actions
leading to a public water system's failure to meet filtration avoid-
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The environmental conservation law is amended by adding a
2 new section 23-0315 to read as follows:
3 § 23-0315. Producer's liability; filtration arbitration determination
5 1. A producer, as defined in section 23-0101 of this article, granted
6 a permit pursuant to the provisions of this article, for the explora-
7 tion, drilling or development of wells that produce oil, gas, salt or
8 hydrocarbon mixture, shall be held liable for actions, performed or
9 completed while in the process of exploration, drilling or development
10 of a well, that directly result in the failure of a public water system
11 to meet all of the existing filtration avoidance criteria established by
12 40 C.F.R. § 141.71 and any other federal or state rules or regulations,
13 and further results in the failure of such public water system to
14 receive or renew a filtration avoidance determination waiver.
15 2. Any person who violates the provisions of this section shall be
16 liable for such civil penalties or sanctions as provided in section
17 71-1307 of this chapter, and for any additional civil damages or fines
18 associated to such violation.
19 3. The commissioner shall order an immediate suspension of explora-
20 tion, drilling or development operations whenever such actions are in
21 violation of this section. Any order issued pursuant to this subdivision
22 shall be reviewed upon application of an aggrieved party by means of an
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
A. 6922 2
1 order to show cause which order shall be issued by any justice of the
2 supreme court in the judicial district in which any order applies and
3 shall be returnable on the third succeeding business day following the
4 issuance of such order. Service of such show cause order shall be made
5 upon the regional office of the department for the region in which such
6 order applies, and upon the attorney general by delivery of such order
7 to an assistant attorney general at an office of the attorney general in
8 the county in which venue of the proceeding is designated, or if there
9 is no office of the attorney general within such county, at the office
10 of the attorney general nearest such county. Except as hereinabove spec-
11 ified, the proceeding to review an order shall be governed by article
12 seventy-eight of the civil practice law and rules. Nothing in this
13 section shall be construed to restrict the commissioner's abatement
14 powers as provided in sections 71-0301 and 3-0301 of this chapter.
15 § 2. The public health law is amended by adding a new section 1170 to
16 read as follows:
17 § 1170. Producer's liability; filtration arbitration determination
18 waivers. 1. A producer, as defined in section 23-0101 of the environ-
19 mental conservation law, granted a permit pursuant to the provisions of
20 such chapter, for the exploration, drilling or development of wells that
21 produce oil, gas, salt or hydrocarbon mixture, shall be held liable for
22 actions, performed or completed while in the process of exploration,
23 drilling or development of a well, that directly result in the failure
24 of a public water system to meet all of the existing filtration avoid-
25 ance criteria established by 40 C.F.R. § 141.71 and any other federal or
26 state rules or regulations, and further results in the failure of such
27 public water system to receive or renew a filtration avoidance determi-
28 nation waiver.
29 2. Any person who violates the provisions of this section shall be
30 liable for such civil penalties or sanctions as provided in section
31 71-1307 of the environmental conservation law, and for any additional
32 civil damages or fines associated to such violation.
33 3. The commissioner of environmental conservation shall order an imme-
34 diate suspension of exploration, drilling or development operations
35 whenever such actions are in violation of this section. Any order issued
36 pursuant to this subdivision shall be reviewed upon application of an
37 aggrieved party by means of an order to show cause which order shall be
38 issued by any justice of the supreme court in the judicial district in
39 which any order applies and shall be returnable on the third succeeding
40 business day following the issuance of such order. Service of such show
41 cause order shall be made upon the regional office of the department of
42 environmental conservation for the region in which such order applies,
43 and upon the attorney general by delivery of such order to an assistant
44 attorney general at an office of the attorney general in the county in
45 which venue of the proceeding is designated, or if there is no office of
46 the attorney general within such county, at the office of the attorney
47 general nearest such county. Except as hereinabove specified, the
48 proceeding to review an order shall be governed by article seventy-eight
49 of the civil practice law and rules. Nothing in this section shall be
50 construed to restrict the commissioner of environmental conservation's
51 abatement powers as provided in sections 71-0301 and 3-0301 of the envi-
52 ronmental conservation law.
53 § 3. This act shall take effect immediately.