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AB5033 Text:

                STATE OF NEW YORK
                               2015-2016 Regular Sessions
                   IN ASSEMBLY
                                    February 10, 2015
        Introduced  by  M.  of  A.  LIFTON, GLICK, O'DONNELL, GOTTFRIED, MILLER,
          sored  by  --  M.  of A. COOK, MARKEY -- read once and referred to the
          Committee on Environmental Conservation
        AN ACT to amend the environmental conservation law, in relation  to  the
          natural gas exploration and extraction liability act of 2015
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "natural gas exploration and extraction liability act of 2015".
     3    §  2.  Legislative findings. 1. The legislature finds that the process
     4  used to stimulate natural gas extraction  referred  to  as  high  volume
     5  hydraulic  fracturing,  also known as "hydro fracturing" and "fracking,"
     6  utilizes components that are often toxic,  that  are  non-biodegradable,
     7  and  that are virtually impossible to remove once they enter the natural
     8  environment. Among the chemicals used  are  volatile  organic  compounds
     9  such  as benzene, toluene, ethyl benzene, and xylene. Many of the chemi-
    10  cals used in this process are federally listed hazardous substances, and
    11  there is only minimal data about the rest. Many of these hazardous chem-
    12  icals are known carcinogens and others can cause other life  threatening
    13  illnesses.  As  a  result  of the air and water pollution caused by such
    14  exploration and extraction operations people are  exposed  to  endocrine
    15  disrupting  agents that can cause kidney, liver, heart, blood, and brain
    16  damage.
    17    2. High volume hydraulic fracturing requires the construction of large
    18  well pads (up to five acres) to  support  the  large  number  of  trucks
    19  delivering  the  fracking chemicals, water trucks, pump trucks and other
    20  equipment. Such  massive  scale  industrial  activity  causes  excessive
    21  noise,  disturbs  underground  water  formations,  vibrates  surrounding
    22  structures, and can result in earthquakes. Millions of gallons  of  this
    23  chemically-laced  water  return  to  the  surface laden with salt, heavy
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 5033                             2
     1  metals and radioactive elements. This wastewater is often stored in open
     2  pits until transported for ultimate disposal. Wildlife and farm  animals
     3  that  have  mistaken  these  pits for freshwater ponds have been killed.
     4  Chemicals  may evaporate from these pits, contributing to air pollution.
     5  Leaks and spills of fracking chemicals from the trucks  and  waste  pits
     6  cause  contamination  of  surface  waters. The remainder of the fracking
     7  fluid remains underground with the possibility of migrating  or  seeping
     8  through fractures in the underground formations, cracks in the well-bore
     9  casing, and through abandoned wells to pollute groundwater.
    10    3.  Widespread  use  of high volume hydraulic fracturing diminishes or
    11  destroys the natural beauty of the land, depletes or interferes with the
    12  natural sources of water used for domestic  and  agricultural  purposes,
    13  disrupts  the natural habitat of wildlife, imposes unaffordable costs on
    14  municipalities and reduces property values thereby harming both homeown-
    15  ers and the municipalities in which such activities are located.
    16    4. Tourism is a major industry for much of the Marcellus  Shale  area.
    17  The  construction  and  operation of natural gas wells in such area will
    18  have a long term negative effect upon such industry that will result  in
    19  lost profits and diminished business value and lost revenue to the muni-
    20  cipalities where such tourism ventures are located.
    21    5.  The  natural  gas  industry  has  embarked upon the procurement in
    22  unprecedented numbers of mineral leases from private landowners across a
    23  broad section of New York state  that  overlays  the  "Marcellus  Shale"
    24  geological  structure for the purpose of utilizing high volume hydraulic
    25  fracturing to extract and mine natural gas from the  shale.  It  is  not
    26  unusual  for 40% or more of the land in such areas to be currently under
    27  lease (although such land is owned by a small minority of landowners  in
    28  the  region) and, accordingly, the industry is poised to secure billions
    29  of dollars in profits from such extraction while potentially causing  an
    30  even  greater  amount  of  damage  to  non-participating  landowners and
    31  renters, as well as to municipalities and even visitors to the area.
    32    6. The legislature further finds that the use of high volume hydraulic
    33  fracturing techniques constitutes a hazardous practice that will  result
    34  in large scale damages to innocent parties.
    35    7.  The  legislature  further finds that landowners who, subsequent to
    36  the effective date of this act, enter into or extend leases with natural
    37  gas exploration, operation, transportation or extraction entities  share
    38  responsibility  with such entities for all damages shown to be caused by
    39  such activities and that all responsible parties be held strictly liable
    40  for damages resulting from such activities.
    41    § 3. Article 23 of the environmental conservation law  is  amended  by
    42  adding a new title 29 to read as follows:
    43                                   TITLE 29
    45  Section 23-2901. Definitions.
    46          23-2903. Strict liability.
    47          23-2905. Joint and several liability.
    48          23-2907. Standing of municipal corporations.
    49          23-2909. Elements of damages; treble damages.
    50          23-2911. Attorney fees.
    51  § 23-2901. Definitions.
    52    As used in this title, unless the context otherwise requires:
    53    1. "High volume hydraulic fracturing" shall mean the use of chemicals,
    54  water and other substances injected or pumped into a natural gas well to
    55  stimulate  production  of  the  well in volumes in excess of one hundred

        A. 5033                             3
     1  thousand gallons in a continuous twenty-four hour period or in excess of
     2  two hundred fifty thousand gallons in any consecutive thirty day period.
     3    2.  "Person"  shall  mean  any individual, association, corporation or
     4  other  entity  that  engages  in  natural  gas  exploration,   drilling,
     5  extraction  or transportation. The term "person" shall include any indi-
     6  vidual, association, corporation or other entity that owns  an  interest
     7  in  land  that is subject to a lease or other grant that permits surface
     8  rights, sub-surface rights or both surface and  sub-surface  rights  for
     9  the   purpose   of  natural  gas  exploration,  drilling,  operation  or
    10  extraction unless said lease or grant was executed prior to  the  effec-
    11  tive date of this title.
    12  § 23-2903. Strict liability.
    13    Natural  gas  exploration,  drilling, extraction by use of high volume
    14  hydraulic fracturing techniques and  transportation  of  hydrofracturing
    15  chemicals and waste products, having been deemed hazardous activities by
    16  the  legislature,  entail strict liability on the part of any person, as
    17  defined in this title, that undertakes such  activities  in  the  state.
    18  Neither  compliance with the requirements of this title, the issuance of
    19  a permit for such activities nor the exercise of due care, shall  excuse
    20  any  such person from liability for personal, property or other elements
    21  of damage pursuant to this title determined to be caused by such hazard-
    22  ous activities. Distinctions between  direct  and  consequential  damage
    23  shall  not  relieve  such  person  of  absolute liability, such person's
    24  intent or negligence for any personal,  property  or  other  element  of
    25  damage pursuant to this title notwithstanding.
    26  § 23-2905. Joint and several liability.
    27    The  liability  of  any person as defined in this title shall be joint
    28  and several with the liability of all other  persons  found  liable  for
    29  damages  resulting from the same incident, event, natural gas operation,
    30  exploration or extraction or transportation activity.
    31  § 23-2907. Standing of municipal corporations.
    32    For the purposes of this title, all municipal corporations,  including
    33  school  districts,  shall have standing to pursue all legal remedies for
    34  damages pursuant to this title.
    35  § 23-2909. Elements of damages; treble damages.
    36    1. In all actions arising from the provisions of this title,  evidence
    37  tending to prove the following elements of damages shall be admissible:
    38    a. personal injury and wrongful death;
    39    b. property damage;
    40    c. reduction in property value;
    41    d. reduction in business value, loss of profits;
    42    e. all other damages caused by such activities; and
    43    f. in the case of municipal corporations:
    44    (1) damage to and maintenance of infrastructure;
    45    (2) loss of revenue due to real property tax reductions resulting from
    46  such exploration, drilling, extraction and transportation activities;
    47    (3) costs incurred by emergency operations necessitated by such activ-
    48  ities; and
    49    (4) all other damages caused by such activities.
    50    2.  In any action arising pursuant to this title, if the trier of fact
    51  determines that any defendant acted willfully, maliciously or with gross
    52  negligence, the court shall award three  times  the  amount  of  damages
    53  established by the trier of fact.
    54  § 23-2911. Attorney fees.

        A. 5033                             4
     1    In any action arising pursuant to this title, a plaintiff who has been
     2  awarded damages shall also recover reasonable attorney fees and expenses
     3  of litigation from the defendants, jointly and severally.
     4    §  4.  This  act shall take effect on the ninetieth day after it shall
     5  have become a law.
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