senate Bill S447

Assigns liability to a producer for actions leading to a public water system's failure to meet filtration avoidance criteria resulting in the loss of filtration

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 09 / Jan / 2013
    • REFERRED TO ENVIRONMENTAL CONSERVATION
  • 08 / Jan / 2014
    • REFERRED TO ENVIRONMENTAL CONSERVATION

Summary

Assigns liability to a producer for actions leading to a public water system's failure to meet filtration avoidance criteria resulting in the loss of a filtration avoidance criteria waiver.

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Bill Details

See Assembly Version of this Bill:
A1529
Versions:
S447
Legislative Cycle:
2013-2014
Current Committee:
Senate Environmental Conservation
Law Section:
Environmental Conservation Law
Laws Affected:
Add §23-0315, En Con L; add §1170, Pub Health L
Versions Introduced in 2011-2012 Legislative Cycle:
S4834, A6922

Sponsor Memo

BILL NUMBER:S447

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 filtration
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 conservation 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
C.F.R. §141.71.

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, agriculture, commerce,
trade, industry and outdoor recreation. It is the sovereign 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 State 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. Environmental 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
agreements with landowners within the watershed that it can control
all human activities which may have an adverse impact on the
microbiological quality 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 drilling 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 $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
neighboring 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 contamination 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 accident "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 estimated 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 prioritization of natural resources.

PRIOR LEGISLATIVE HISTORY:

2011: S.4834/A.6922 (Colton)

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   447

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen.  AVELLA -- 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 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-
  ance criteria

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The environmental conservation law is amended by adding a
new section 23-0315 to read as follows:
S 23-0315. PRODUCER'S LIABILITY;  FILTRATION  ARBITRATION  DETERMINATION
              WAIVERS.
  1.  A PRODUCER, AS DEFINED IN SECTION 23-0101 OF THIS ARTICLE, GRANTED
A PERMIT PURSUANT TO THE PROVISIONS OF THIS ARTICLE,  FOR  THE  EXPLORA-
TION,  DRILLING  OR  DEVELOPMENT OF WELLS THAT PRODUCE OIL, GAS, SALT OR
HYDROCARBON MIXTURE, SHALL BE HELD  LIABLE  FOR  ACTIONS,  PERFORMED  OR
COMPLETED  WHILE  IN THE PROCESS OF EXPLORATION, DRILLING OR DEVELOPMENT
OF A WELL, THAT DIRECTLY RESULT IN THE FAILURE OF A PUBLIC WATER  SYSTEM
TO MEET ALL OF THE EXISTING FILTRATION AVOIDANCE CRITERIA ESTABLISHED BY
40  C.F.R. S 141.71 AND ANY OTHER FEDERAL OR STATE RULES OR REGULATIONS,
AND FURTHER RESULTS IN THE  FAILURE  OF  SUCH  PUBLIC  WATER  SYSTEM  TO
RECEIVE OR RENEW A FILTRATION AVOIDANCE DETERMINATION WAIVER.
  2.  ANY  PERSON  WHO  VIOLATES THE PROVISIONS OF THIS SECTION SHALL BE
LIABLE FOR SUCH CIVIL PENALTIES OR  SANCTIONS  AS  PROVIDED  IN  SECTION
71-1307  OF  THIS CHAPTER, AND FOR ANY ADDITIONAL CIVIL DAMAGES OR FINES
ASSOCIATED TO SUCH VIOLATION.
  3. THE COMMISSIONER SHALL ORDER AN IMMEDIATE  SUSPENSION  OF  EXPLORA-
TION,  DRILLING  OR  DEVELOPMENT OPERATIONS WHENEVER SUCH ACTIONS ARE IN
VIOLATION OF THIS SECTION. ANY ORDER ISSUED PURSUANT TO THIS SUBDIVISION
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.
                                                           LBD03382-01-3

S. 447                              2

ORDER  TO  SHOW  CAUSE WHICH ORDER SHALL BE ISSUED BY ANY JUSTICE OF THE
SUPREME COURT IN THE JUDICIAL DISTRICT IN WHICH ANY  ORDER  APPLIES  AND
SHALL  BE  RETURNABLE ON THE THIRD SUCCEEDING BUSINESS DAY FOLLOWING THE
ISSUANCE  OF SUCH ORDER.  SERVICE OF SUCH SHOW CAUSE ORDER SHALL BE MADE
UPON THE REGIONAL OFFICE OF THE DEPARTMENT FOR THE REGION IN WHICH  SUCH
ORDER  APPLIES,  AND UPON THE ATTORNEY GENERAL BY DELIVERY OF SUCH ORDER
TO AN ASSISTANT ATTORNEY GENERAL AT AN OFFICE OF THE ATTORNEY GENERAL IN
THE COUNTY IN WHICH VENUE OF THE PROCEEDING IS DESIGNATED, OR  IF  THERE
IS  NO  OFFICE OF THE ATTORNEY GENERAL WITHIN SUCH COUNTY, AT THE OFFICE
OF THE ATTORNEY GENERAL NEAREST SUCH COUNTY. EXCEPT AS HEREINABOVE SPEC-
IFIED, THE PROCEEDING TO REVIEW AN ORDER SHALL BE  GOVERNED  BY  ARTICLE
SEVENTY-EIGHT  OF  THE  CIVIL  PRACTICE LAW AND RULES.   NOTHING IN THIS
SECTION SHALL BE CONSTRUED  TO  RESTRICT  THE  COMMISSIONER'S  ABATEMENT
POWERS AS PROVIDED IN SECTIONS 71-0301 AND 3-0301 OF THIS CHAPTER.
  S  2. The public health law is amended by adding a new section 1170 to
read as follows:
  S 1170. PRODUCER'S  LIABILITY;  FILTRATION  ARBITRATION  DETERMINATION
WAIVERS.  1.  A  PRODUCER, AS DEFINED IN SECTION 23-0101 OF THE ENVIRON-
MENTAL CONSERVATION LAW, GRANTED A PERMIT PURSUANT TO THE PROVISIONS  OF
SUCH CHAPTER, FOR THE EXPLORATION, DRILLING OR DEVELOPMENT OF WELLS THAT
PRODUCE  OIL, GAS, SALT OR HYDROCARBON MIXTURE, SHALL BE HELD LIABLE FOR
ACTIONS, PERFORMED OR COMPLETED WHILE IN  THE  PROCESS  OF  EXPLORATION,
DRILLING  OR  DEVELOPMENT OF A WELL, THAT DIRECTLY RESULT IN THE FAILURE
OF A PUBLIC WATER SYSTEM TO MEET ALL OF THE EXISTING  FILTRATION  AVOID-
ANCE CRITERIA ESTABLISHED BY 40 C.F.R. S 141.71 AND ANY OTHER FEDERAL OR
STATE  RULES  OR REGULATIONS, AND FURTHER RESULTS IN THE FAILURE OF SUCH
PUBLIC WATER SYSTEM TO RECEIVE OR RENEW A FILTRATION AVOIDANCE  DETERMI-
NATION WAIVER.
  2.  ANY  PERSON  WHO  VIOLATES THE PROVISIONS OF THIS SECTION SHALL BE
LIABLE FOR SUCH CIVIL PENALTIES OR  SANCTIONS  AS  PROVIDED  IN  SECTION
71-1307  OF  THE  ENVIRONMENTAL CONSERVATION LAW, AND FOR ANY ADDITIONAL
CIVIL DAMAGES OR FINES ASSOCIATED TO SUCH VIOLATION.
  3. THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION SHALL ORDER AN IMME-
DIATE SUSPENSION OF  EXPLORATION,  DRILLING  OR  DEVELOPMENT  OPERATIONS
WHENEVER SUCH ACTIONS ARE IN VIOLATION OF THIS SECTION. ANY ORDER ISSUED
PURSUANT  TO  THIS  SUBDIVISION SHALL BE REVIEWED UPON APPLICATION OF AN
AGGRIEVED PARTY BY MEANS OF AN ORDER TO SHOW CAUSE WHICH ORDER SHALL  BE
ISSUED  BY  ANY JUSTICE OF THE SUPREME COURT IN THE JUDICIAL DISTRICT IN
WHICH ANY ORDER APPLIES AND SHALL BE RETURNABLE ON THE THIRD  SUCCEEDING
BUSINESS  DAY FOLLOWING THE ISSUANCE OF SUCH ORDER. SERVICE OF SUCH SHOW
CAUSE ORDER SHALL BE MADE UPON THE REGIONAL OFFICE OF THE DEPARTMENT  OF
ENVIRONMENTAL  CONSERVATION  FOR THE REGION IN WHICH SUCH ORDER APPLIES,
AND UPON THE ATTORNEY GENERAL BY DELIVERY OF SUCH ORDER TO AN  ASSISTANT
ATTORNEY  GENERAL  AT AN OFFICE OF THE ATTORNEY GENERAL IN THE COUNTY IN
WHICH VENUE OF THE PROCEEDING IS DESIGNATED, OR IF THERE IS NO OFFICE OF
THE ATTORNEY GENERAL WITHIN SUCH COUNTY, AT THE OFFICE OF  THE  ATTORNEY
GENERAL  NEAREST  SUCH  COUNTY.    EXCEPT  AS HEREINABOVE SPECIFIED, THE
PROCEEDING TO REVIEW AN ORDER SHALL BE GOVERNED BY ARTICLE SEVENTY-EIGHT
OF THE CIVIL PRACTICE LAW AND RULES.  NOTHING IN THIS SECTION  SHALL  BE
CONSTRUED  TO  RESTRICT THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION'S
ABATEMENT POWERS AS PROVIDED IN SECTIONS 71-0301 AND 3-0301 OF THE ENVI-
RONMENTAL CONSERVATION LAW.
  S 3. This act shall take effect immediately.

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