senate Bill S5879A

2011-2012 Legislative Session

Provides for the regulation of the conducting of hydraulic fracturing; repealer

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Archive: Last Bill Status - In Committee


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to environmental conservation
Dec 23, 2011 print number 5879a
amend and recommit to rules
Sep 09, 2011 referred to rules

Bill Amendments

Original
A (Active)
Original
A (Active)

S5879 - Bill Details

See Assembly Version of this Bill:
A8805A
Current Committee:
Law Section:
Environmental Conservation Law
Laws Affected:
Add Art 23 Title 15 §§23-1501 - 23-1511 & Title 16 §§23-1601 - 23-1607, amd §8-0109, rpld & add §23-0303 sub 2, En Con L

S5879 - Bill Texts

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Provides for the regulation of the conducting of hydraulic fracturing; requires producers to disclose the composition of hydraulic fracturing fluids to the department of environmental conservation; provides that producers using hydraulic fracturing are strictly liable for any and all damages arising from such practice; requires all such producers to concede liability; provides for damages.

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BILL NUMBER:S5879

TITLE OF BILL:
An act
to amend the environmental conservation law, in relation to regulation
of the extraction of natural gas by means of hydraulic fracturing; and to
repeal subdivision 2 of section 23-0303 of such law relating to
exclusivity of state authority over mining

PURPOSE:
This legislation will create the "Property Owners Bill of Rights"

SUMMARY OF PROVISIONS:
Section One - amends the environmental conservation law by adding two
new titles, 15 and 16 to Article 23.

Title 15 - Defines the disclosure of composition of hydraulic
fracturing fluids. This title includes definitions, the type of
information submitted that is considered public, service company
disclosures, operator disclosers and defines what use of service of
non-complying service company is prohibited.

Section One - defines an "additive" as any substance or combination of
substances found in hydraulic fracturing fluid, including a proppant,
that is added to a base fluid in the context of a hydraulic
fracturing treatment. Defines "Base Fluid" as the base fluid type,
such as water or nitrogen foam, used in a particular hydraulic
fracturing treatment. Defines "Chemical Abstracts Service" or CAS" as
the chemical registry that is the authoritative collection of
disclosed chemical substance information. Defines "chemical
constituent" as a discrete chemical with its own specific name or
identity, such as CAS number, that is contained in an additive"
Defines "hydraulic fracturing fluid" as the fluid used to perform a
particular hydraulic fracturing treatment and includes the applicable
base fluid and all additives." Defines "hydraulic fracturing
treatment" as the stimulation of a well by the forceful application
of hydraulic fracturing fluid into the relevant geological formation
for the purpose of creating fractures in the formation in order to
facilitate production of hydrocarbons. Defines "operator" as the
person authorized to conduct operations on a well. Defines "Propp
ant" as sand or another natural or man-made inert material that
is used in a hydraulic fracturing treatment to prevent artificially
created or enhanced fractures from closing once the treatment is
completed. Defines "trade secret" as any confidential
formula, pattern, process, device, information or complication of
information that is used in a person's business and that gives the
person an opportunity to obtain an advantage over competitors that do
not know or use it. Defines "well" as hydrocarbon production well.
Defines "well completion report" as the report an operator is
required to file with the commission following the completion or
recompletion of a well, if applicable.

Section One - states all this information submitted under this section
in the disclosure of composition of hydraulic fracturing fluids is
considered public and will be posting on the internet.


Section One - states unless the information is otherwise authorized to
be withheld as a trade secret, the chemicals used in hydrofracking
will be public information and the department will post the
information on its publicly accessible internet website. To qualify
for trade secret protection, the person performing the hydraulic
fracturing treatment must submit to the department on an approved
form a formal claim of entitlement to that protection. Under this law
trade secret does not authorize a person to withhold information as
stated in federal or state law to a health professional who needs
such information for diagnostic or treatment purposes. If a health
care professional requests the information, a person performing
hydraulic fracturing will provide the percent by volume of the
chemical constituents of the hydraulic fracturing fluid and their
associated CAS numbers. If it is not a medical emergency, the health
care professional will provide the person performing the hydraulic
fracturing treatment a written statement of need for the information.
The health care professional will keep this information confidential,
except with other health care professionals for medical treatment.

Section One - describes the Service Company Disclosures as a person
performing hydraulic fracturing treatments will disclose to the
department and maintain an updated master list of:
a) All base fluids to be used by the person during hydraulic
fracturing treatment;
b) All additives used by the person in any hydraulic fracturing
treatment, and their associated CAS numbers;
c) All chemical constituents to be used in hydraulic fracturing
treatment in this state.

Section One - states a person performing hydraulic fracturing
treatments will provide to the operator of each well the following:
a) The maximum pump pressure measured at the surface and the type and
volume of base fluid used in each stage of the hydraulic fracturing
treatment;
b) A list of all additives used in the hydraulic fracturing fluid,
such as acid, biocide, breaker, corrosion inhibitor, crosslinker,
demulsifier, friction reducer, gel, iron control, oxygen scavenger,
pH adjusting agent, proppant, scale inhibitor and surfactant;
c) For each additive type listed under paragraph b of this
subdivision, the specific name of the additive used and the actual
rate or concentration of each additive, expressed as pounds per
thousand gallons or gallons per thousand gallons and expressed as a
percentage by volume of the total hydraulic fracturing fluid used;
d) A list of the all the chemical constituents used in the hydraulic
fracturing fluid and their associated CAS numbers, unless the
identity of any chemical constituent is a trade secret;

e) For each chemical constituent, the actual rate or concentration of
each chemical expressed as pounds per thousand gallons or gallons per
thousand gallons and expressed as a percentage by volume of the total
hydraulic fracturing fluid used;

Section One - states following the completion of hydraulic fracturing
treatment on a property, the operator will include in a well
completion report the following information:
a) The maximum pump pressure measured at the surface and the type and
volume of bas fluid used in each stage of the hydraulic fracturing


treatment;
b) A list of all additives used in the hydraulic fracturing treatment;
c) For each additive, the specific name of the additive used and the
actual rate or concentration of each additives;
d) The complete information of who performed the hydraulic fracturing
treatment;
e) If the operator caused any additives to be used during the hydraulic
fracturing treatment Section states for each additive listed the
chemical constituents of the additive and their associated CAS
numbers and the actual rate or concentration of each additive or
chemical, expressed in the manner provided.

Section One - states the operator may supply field service company
tickets, excluding pricing information, and reports regarding the
hydraulic fracturing treatment, as used in the normal course of
business, to satisfy some or all of the requirements.

Title 16 - describes the regulation of hydraulic fracturing, which
includes definitions, concession of liability and agreements with
property owners and damages.

Section One - defines "hydraulic fracturing" as the use of chemicals,
water and other substances injected or pumped into a natural gas well
to stimulate the extraction of natural gas well to stimulate the
extraction of natural gas. Defines "producer" as any individual or
entity engaged in the drilling for or extraction of natural gas
through the utilization of hydraulic fracturing.

Section One - states prior to the issuance of any permit, to engage in
hydraulic fracturing will deliver to the department a concession of
liability and waiver of all defenses arising out of any cause of
action related to property personal and wrongful death damages
alleged to have been caused by hydraulic fracturing conducted by such
producer. Concession and waiver shall be executed in such form and
manner as shall be determined by the attorney general, and will
provide for strict liability to the people of the state of New York
and every person within the state for any and all damages arising
from the conducting of hydraulic fracturing within this state. Every
producer which enter into an agreement with an owner of real property
which provides for the lease, license or grant of authority to
conduct hydraulic fracturing upon such real property, shall include a
copy of its concession of liability, similar to the concession of
liability executed in favor of the real property owner. The
concession of liability will be determined by the attorney general.

Section One - states no agreement for the lease, license or grant of
authority to conduct hydraulic fracturing upon real property in new
York will be executed until three independent appraisals of the real
property value have been done. Upon completion of the appraisals a copy
of the appraisal will be provided to the real property owner, the
producer and the department and will be attached to every agreement
providing for hydraulic fracturing.

Section One - states no agreement for the lease, license or grant of
authority to conduct hydraulic fracturing will be executed until the
department has conducted water and soil contamination testing on the
property for the presence of hydraulic fracturing fluids. A report of


the results of the test will be provided to both the real property
owner and the producer.

Section One - states each producer will include in every agreement it
enters into with a property owner for the lease, license or grant of
authority to conduct hydraulic fracturing the following:
a) A statement of the financial, health and environmental risks posed
by or potentially posed by conduct of hydraulic fracturing. This
statement will be jointly developed and periodically updated by the
commissioner, attorney general and the commissioner of health;
b) A statement of the risks of ground soil and ground water
contamination posed by or potentially posed by the conduct of
hydraulic fracturing;
c) A statement of the health risks posed by spills of and
contamination by hydraulic fracturing fluids;
d) A statement of the producer's strict liability for any and all
damages resulting from the conducting of hydraulic fracturing, and
the damages that will be awarded there for pursuant to this title.

Section One - states if there is contamination of the ground soil/or
ground water by any producer, the producer will be liable for the
following damages:
a) To the affected real property owner, an amount equal to one hundred
fifty percent of the real property value, as determined pursuant to
subdivision one of section 23 - 1605 of this title, and the full cost
of remediating the contaminated ground soil and ground water;
b) To any person affected by such contamination, an amount equal to
the cost of the diagnosis, treatment, monitoring and care of such
person, for life, related to any disease or condition arising out of
such contamination.

Under no circumstances will any amount of damages awarded or paid
pursuant to this section be deemed to be income to any person. All
such damages will be a reimbursement for losses actually incurred by
the recipient thereof.

Section Two - amends subdivision 9 of section 8-0109 of the
environmental conservation law to add an environmental impact
statement will be prepared for any action found to have a significant
impact on the special groundwater protection area, for any natural
gas or oil drilling involving the use of hydraulic fracturing fluid.
This statement will meet the requirements of the most detailed
environmental impact statement required by this section or by any
rule or regulation promulgated.

Section Three - repeals subdivision 2 of section 23 - 0303 of the
environmental conservation law and adds a new subdivision 2 to
supersede all other state and local laws relating to the oil, gas and
solution mining industries, provided that nothing in this section
will prevent any local government from:
a) Enacting or enforcing local laws or ordinances of general
applicability, except that such local laws or ordinances will not
regulate oil, gas and solution mining regulated by state statute,
regulation or permit;
b) Enacting or enforcing local zoning ordinances or laws which
determine permissible uses in zoning districts. Where oil, gas and
solution mining is designed a permissible use in a zoning district


and allowed by special use permit, condition placed on such special
use permits will be limited to the following:
i. Ingress and egress to public thoroughfares controlled by the local
government;
ii. Routing of drilling and drilling-related transport vehicles on
roads controlled by the local government;
iii. Requirements and conditions as specified in permit issued by the
department concerning setback from property boundaries and public
thoroughfare rights-of-way, natural or man-made barriers to restrict
access, if required, dust control and hours of operation;
iv. Conformance to road construction standards as may be otherwise
provided for by local law;

Section Three - states enacting or enforcing local laws or ordinances
regulating oil, gas and solution mining not required to be permitted
by the state.

Section Four - states this act shall take effect on the first of June
next succeeding the date on which it becomes a law; provided, that
effective immediately, any actions necessary to implement the
provisions of this act on its effective date are authorized and
directed to be completed on or before such date.

JUSTIFICATION:
This legislation creates the "Property Owners Bill of Rights," This
bill provides definitions for hydraulic fracturing fluid, hydraulic
fracturing treatment, chemical abstracts service, chemical
constituent, base fluid, operator, proppant, trade secret, well and
well completion report.

This bill will protect property owners if they decide to lease their
property for the use of hydraulic fracturing. This legislation will
also protect surrounding property owner's safety and financial well
being from the negative effects of hydraulic fracturing.

This legislation adds Title 15 and 16 to the environmental
conservation law. Title 15 mandates the disclosure of composition of
hydraulic fracturing fluids by any company or individual that is
involved in the process of hydraulic fracturing in New York State.
Companies will be expected to fully disclose every chemical in the
fracturing fluid being used for the purpose of hydraulic fracturing.
In order to create full transparency for all property owners, these
chemicals will be made public knowledge and available on the internet.

Title 15 also defines the type of information submitted that is
considered public and a trade secret. This legislation also defines a
trade secret, and the process by which a company can define a product
a trade secret. However, this legislation does not authorize a person
to withhold information as stated in federal or state law to a health
professional who needs such information for diagnostic or treatment
purposes. If a health care professional requests the information, a
person performing hydraulic fracturing will provide the percent by
volume of the chemical constituents of the hydraulic fracturing fluid
and their associated CAS numbers. If a property owner is signs a
lease and authorizes the use of their land, they have a right to know
any and all chemicals that are being put into their property, as well
as the amount and rate of which these chemicals are being used.


In order to protect property owner's safety, any person performing
hydraulic fracturing treatments will disclose to the department and
maintain an updated master list of; all base fluids to be used by the
person during hydraulic fracturing treatment, all additives used by
the person in any hydraulic fracturing treatment, and their
associated CAS numbers; and all chemical constituents to be used in
hydraulic fracturing treatment in this state. All of this information
will be made available in a "Well Completion Report" and will be made
available to the public.

The creation of Title 15 will ensure transparency for property owners
in regards to hydraulic fracturing in the State of New York. Title 15
will give property owners the knowledge they need to go into a lease
agreement fully informed of all the chemicals used in hydraulic
fracturing.

The "Property Owner's Bill of Rights" includes the addition of Title
16 to the environmental conservation law. Title 16 describes the
regulation of hydraulic fracturing, which includes definitions,
concession of liability and agreements with property owners as well
as damages.

Title 16 states prior to the issuance of any permit, to engage in
hydraulic fracturing will deliver to the department a concession of
liability and waiver of all defenses arising out of any cause of
action related to property personal and wrongful death damages
alleged to have been caused by hydraulic fracturing conducted by such
producer. Concession and waiver will be executed in such form and
manner as shall be determined by the attorney general, and will
provide for strict liability to the people of the state of New York
and every person within the state for any and all damages arising
from the conducting of hydraulic fracturing within this state.

Title 16 protects New York state property owner's by stating no
agreement for the lease, license or grant of authority to conduct
hydraulic fracturing upon real property in new York will be executed
until three independent appraisals of the real property value have
been done. Upon completion of the appraisals a copy of the appraisal
will be provided to the real property owner, the producer and the
department and will be attached to every agreement providing for
hydraulic fracturing.

Under this legislation no agreement for the lease, license or grant of
authority to conduct hydraulic fracturing will be executed until the
department has conducted water and soil contamination testing on the
property for the presence of hydraulic fracturing fluids. A report of
the results of the test will be provided to both the real property
owner and the producer.

Title 16 ensures property owners are fully informed on the risks of
hydraulic fracturing to their land, homes, financial well being and
health. Each producer will include in every agreement it enters into
with a property owner for the lease, license or grant of authority to
conduct hydraulic fracturing the following:

a) A statement of the financial, health and environmental risks posed
by or potentially posed by conduct of hydraulic fracturing. This


statement will be jointly developed and periodically updated by the
commissioner, attorney general and the commissioner of health;
c) A statement of the risks of ground soil and ground water
contamination posed by or potentially posed by the conduct of
hydraulic fracturing;
d) A statement of the health risks posed by spills of and
contamination by hydraulic fracturing fluids;
e) A statement of the producer's strict liability for any and all
damages resulting from the conducting of hydraulic fracturing, and
the damages that will be awarded there for pursuant to this title.

Title 16 protects property owners by addressing the issue of damages.
If there is contamination of the ground soil/or ground water by any
producer, the producer will be liable for the following damages; an
amount equal to one hundred fifty percent of the real property value,
and the full cost of remediating the contaminated ground soil and
ground water. Damages include that any person affected by such
contamination, an amount equal to the cost of the diagnosis,
treatment, monitoring and care of such person, for life, related to
any disease or condition arising out of such contamination.

Title 16 also states, to protect a property owner, an environmental
impact statement will be prepared for any action found to have a
significant impact on the special groundwater protection area, for
any natural gas or oil drilling involving the use of hydraulic
fracturing fluid. This statement will meet the requirements of the
most detailed environmental impact statement required by this section
or by any rule or regulation promulgated.

Title 16 provides that nothing in this section will prevent any local
government from enacting or enforcing local laws or ordinances of
general applicability, except that such local laws or ordinances will
not regulate oil, gas and solution mining regulated by state statute,
regulation or permit. Title 16 stipulates that enacting or enforcing
local zoning ordinances or laws, which determine permissible uses in
zoning districts. Where oil, gas and solution mining is designed a
permissible use in a zoning district and allowed by special use
permit, condition placed on such special use permits will be limited
to the following; ingress and egress to public thoroughfares
controlled by the local government, routing of drilling and
drilling-related transport vehicles on road controlled by the local
government, requirements and conditions as specified in permit issued
by the department concerning setback from property boundaries and
public thoroughfare rights-of-way, natural or man-made barriers to
restrict access, if required, dust control and hours of operation,
and the conformance to road construction standards as may be
otherwise provided for by local law.

LEGISLATIVE HISTORY:
New legislation.

FISCAL IMPLICATIONS:
To be determined.

EFFECTIVE DATE:
This act shall take effect on the first of June next succeeding the
date on which it becomes a law;


provided, that effective immediately, any actions necessary to
implement the provisions of this act on its effective date are
authorized and directed to be completed on or before such date.

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

                                  5879

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            September 9, 2011
                               ___________

Introduced  by  Sen.  BALL  --  read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

AN ACT to amend the environmental conservation law, in relation to regu-
  lation of the extraction of natural gas by means of hydraulic fractur-
  ing; and to repeal subdivision 2 of section 23-0303 of such law relat-
  ing to exclusivity of state authority over mining

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

  Section 1. Article 23 of the environmental conservation law is amended
by adding two new titles 15 and 16 to read as follows:
                                TITLE 15
                      DISCLOSURE OF COMPOSITION OF
                       HYDRAULIC FRACTURING FLUIDS
SECTION 23-1501.  DEFINITIONS.
        23-1503.  INFORMATION  SUBMITTED  CONSIDERED  PUBLIC; POSTING ON
                    INTERNET WEBSITE.
        23-1505.  SERVICE COMPANY DISCLOSURES.
        23-1507.  OPERATOR DISCLOSURES.
        23-1509.  USE  OF  SERVICES  OF  NONCOMPLYING  SERVICE   COMPANY
                    PROHIBITED.
        23-1511. TRADE SECRET PROTECTION.
S 23-1501. DEFINITIONS.
  AS USED IN THIS TITLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
  1.  "ADDITIVE"  MEANS ANY SUBSTANCE OR COMBINATION OF SUBSTANCES FOUND
IN A HYDRAULIC FRACTURING FLUID, INCLUDING A PROPPANT, THAT IS ADDED  TO
A BASE FLUID IN THE CONTEXT OF A HYDRAULIC FRACTURING TREATMENT.
  2.  "BASE  FLUID" MEANS THE BASE FLUID TYPE, SUCH AS WATER OR NITROGEN
FOAM, USED IN A PARTICULAR HYDRAULIC FRACTURING TREATMENT.
  3. "CHEMICAL ABSTRACTS SERVICE" OR "CAS" MEANS THE  CHEMICAL  REGISTRY
THAT  IS  THE  AUTHORITATIVE  COLLECTION OF DISCLOSED CHEMICAL SUBSTANCE
INFORMATION.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13392-01-1

S. 5879                             2

  4. "CHEMICAL CONSTITUENT" MEANS  A  DISCRETE  CHEMICAL  WITH  ITS  OWN
SPECIFIC NAME OR IDENTITY, SUCH AS A CAS NUMBER, THAT IS CONTAINED IN AN
ADDITIVE.
  5.  "HYDRAULIC  FRACTURING  FLUID"  MEANS  THE FLUID USED TO PERFORM A
PARTICULAR HYDRAULIC FRACTURING TREATMENT AND  INCLUDES  THE  APPLICABLE
BASE FLUID AND ALL ADDITIVES.
  6. "HYDRAULIC FRACTURING TREATMENT" MEANS THE STIMULATION OF A WELL BY
THE FORCEFUL APPLICATION OF HYDRAULIC FRACTURING FLUID INTO THE RELEVANT
GEOLOGICAL FORMATION FOR THE PURPOSE OF CREATING FRACTURES IN THE FORMA-
TION IN ORDER TO FACILITATE PRODUCTION OF HYDROCARBONS.
  7.  "OPERATOR"  MEANS THE PERSON AUTHORIZED TO CONDUCT OPERATIONS ON A
WELL.
  8. "PROPPANT" MEANS SAND OR ANOTHER NATURAL OR MAN-MADE INERT MATERIAL
THAT IS USED IN A HYDRAULIC FRACTURING TREATMENT TO PREVENT ARTIFICIALLY
CREATED OR  ENHANCED  FRACTURES  FROM  CLOSING  ONCE  THE  TREATMENT  IS
COMPLETED.
  9.  "TRADE  SECRET"  MEANS ANY CONFIDENTIAL FORMULA, PATTERN, PROCESS,
DEVICE, INFORMATION OR COMPILATION OF INFORMATION  THAT  IS  USED  IN  A
PERSON'S  BUSINESS AND THAT GIVES THE PERSON AN OPPORTUNITY TO OBTAIN AN
ADVANTAGE OVER COMPETITORS THAT DO NOT KNOW OR USE IT.
  10. "WELL" MEANS A HYDROCARBON PRODUCTION WELL.
  11. "WELL COMPLETION REPORT" MEANS THE REPORT AN OPERATOR IS  REQUIRED
TO  FILE WITH THE COMMISSION FOLLOWING THE COMPLETION OR RECOMPLETION OF
A WELL, IF APPLICABLE.
S 23-1503. INFORMATION SUBMITTED CONSIDERED PUBLIC; POSTING ON  INTERNET
             WEBSITE.
  NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, UNLESS THE INFORMATION IS
OTHERWISE  AUTHORIZED  TO BE WITHHELD AS A TRADE SECRET PURSUANT TO THIS
TITLE, INFORMATION SUBMITTED  TO  THE  DEPARTMENT  PURSUANT  TO  SECTION
23-1505  OR 23-1507 OF THIS TITLE IS PUBLIC INFORMATION, AND THE DEPART-
MENT SHALL POST THE INFORMATION  ON  ITS  PUBLICLY  ACCESSIBLE  INTERNET
WEBSITE.
S 23-1505. SERVICE COMPANY DISCLOSURES.
  1.  A  PERSON PERFORMING HYDRAULIC FRACTURING TREATMENTS IN THIS STATE
SHALL DISCLOSE TO THE DEPARTMENT AND MAINTAIN AN UPDATED MASTER LIST OF:
  A. ALL BASE FLUIDS TO BE USED BY THE PERSON DURING ANY HYDRAULIC FRAC-
TURING TREATMENT IN THIS STATE;
  B. ALL ADDITIVES TO BE USED BY THE PERSON DURING ANY  HYDRAULIC  FRAC-
TURING TREATMENT IN THIS STATE; AND
  C. ALL CHEMICAL CONSTITUENTS TO BE USED BY THE PERSON IN ANY HYDRAULIC
FRACTURING TREATMENT IN THIS STATE AND THEIR ASSOCIATED CAS NUMBERS.
  2. NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH C OF SUBDIVISION ONE OF
THIS SECTION, IF THE SPECIFIC IDENTIFY OF ANY CHEMICAL CONSTITUENT TO BE
USED  IN ANY HYDRAULIC FRACTURING TREATMENT IN THIS STATE IS ENTITLED TO
BE WITHHELD AS A TRADE SECRET PURSUANT TO THE CRITERIA  PROVIDED  BY  42
U.S.C.  SECTION  11042(A)(2)  AND  SECTION  23-1511  OF  THIS TITLE, THE
DEPARTMENT SHALL PROTECT AND HOLD CONFIDENTIAL THE IDENTITY OF THE CHEM-
ICAL CONSTITUENT AND ITS ASSOCIATED CAS NUMBER.  TO  QUALIFY  FOR  TRADE
SECRET PROTECTION, THE PERSON PERFORMING THE HYDRAULIC FRACTURING TREAT-
MENT MUST SUBMIT TO THE DEPARTMENT ON AN APPROVED FORM A FORMAL CLAIM OF
ENTITLEMENT TO THAT PROTECTION IN THE MANNER REQUIRED BY SECTION 23-1511
OF THIS TITLE.
  3.  A  PERSON PERFORMING HYDRAULIC FRACTURING TREATMENTS IN THIS STATE
SHALL PROVIDE TO THE OPERATOR OF EACH WELL FOR WHICH THE PERSON PERFORMS
A HYDRAULIC FRACTURING TREATMENT:

S. 5879                             3

  A. THE MAXIMUM PUMP PRESSURE MEASURED AT THE SURFACE AND THE TYPE  AND
VOLUME  OF  BASE  FLUID  USED  IN EACH STAGE OF THE HYDRAULIC FRACTURING
TREATMENT;
  B.  A  LIST  OF  ALL ADDITIVES USED IN THE HYDRAULIC FRACTURING FLUID,
SPECIFIED BY GENERAL TYPE, SUCH AS  ACID,  BIOCIDE,  BREAKER,  CORROSION
INHIBITOR,   CROSSLINKER,   DEMULSIFIER,  FRICTION  REDUCER,  GEL,  IRON
CONTROL, OXYGEN SCAVENGER, PH ADJUSTING AGENT, PROPPANT, SCALE INHIBITOR
AND SURFACTANT;
  C. FOR EACH ADDITIVE TYPE LISTED UNDER PARAGRAPH B  OF  THIS  SUBDIVI-
SION,  THE  SPECIFIC  NAME  OF  THE ADDITIVE USED AND THE ACTUAL RATE OR
CONCENTRATION OF EACH ADDITIVE, EXPRESSED AS POUNDS PER THOUSAND GALLONS
OR GALLONS PER THOUSAND GALLONS AND EXPRESSED AS A PERCENTAGE BY  VOLUME
OF THE TOTAL HYDRAULIC FRACTURING FLUID USED;
  D. A LIST OF ALL THE CHEMICAL CONSTITUENTS USED IN THE HYDRAULIC FRAC-
TURING FLUID AND THEIR ASSOCIATED CAS NUMBERS, EXCEPT TO THE EXTENT THAT
THE  SPECIFIC  IDENTITY  OF  ANY  CHEMICAL CONSTITUENT IS ENTITLED TO BE
WITHHELD AS A TRADE SECRET  AS  PROVIDED  BY  SUBDIVISION  TWO  OF  THIS
SECTION; AND
  E.  FOR EACH CHEMICAL CONSTITUENT IDENTIFIED UNDER PARAGRAPH D OF THIS
SUBDIVISION,  THE  ACTUAL  RATE  OR  CONCENTRATION  OF  EACH   CHEMICAL,
EXPRESSED AS POUNDS PER THOUSAND GALLONS OR GALLONS PER THOUSAND GALLONS
AND  EXPRESSED AS A PERCENTAGE BY VOLUME OF THE TOTAL HYDRAULIC FRACTUR-
ING FLUID USED.
  4. THE PROVISIONS OF SUBDIVISIONS TWO AND THREE OF THIS SECTION  SHALL
NOT BE DEEMED TO AUTHORIZE A PERSON TO WITHHOLD INFORMATION THAT FEDERAL
OR  STATE  LAW,  INCLUDING  THIS SECTION, REQUIRES TO BE PROVIDED TO ANY
HEALTH CARE PROFESSIONAL WHO NEEDS THE  INFORMATION  FOR  DIAGNOSTIC  OR
TREATMENT PURPOSES. A PERSON PERFORMING A HYDRAULIC FRACTURING TREATMENT
SHALL  PROVIDE  DIRECTLY  TO  A HEALTH CARE PROFESSIONAL, IMMEDIATELY IN
REQUEST, ALL INFORMATION  REQUIRED  BY  THE  HEALTH  CARE  PROFESSIONAL,
INCLUDING  THE  PERCENT  BY  VOLUME  OF THE CHEMICAL CONSTITUENTS OF THE
HYDRAULIC FRACTURING FLUID AND THEIR ASSOCIATED CAS NUMBERS. IN  A  CASE
THAT  IS  NOT  A  MEDICAL  EMERGENCY, THE HEALTH CARE PROFESSIONAL SHALL
PROVIDE THE PERSON PERFORMING THE HYDRAULIC FRACTURING TREATMENT A WRIT-
TEN STATEMENT OF NEED FOR THE INFORMATION BEFORE THE HEALTH CARE PROFES-
SIONAL IS ENTITLED TO RECEIVE THE INFORMATION. IN A  MEDICAL  EMERGENCY,
THE  HEALTH  CARE  PROFESSIONAL  SHALL PROVIDE THE PERSON PERFORMING THE
HYDRAULIC FRACTURING TREATMENT A  WRITTEN  STATEMENT  OF  NEED  FOR  THE
INFORMATION AS SOON AS CIRCUMSTANCES PERMIT.
  5.  A HEALTH CARE PROFESSIONAL TO WHOM INFORMATION IS DISCLOSED PURSU-
ANT TO SUBDIVISION FOUR OF  THIS  SECTION  SHALL  HOLD  THE  INFORMATION
CONFIDENTIAL, EXCEPT THAT THE HEALTH CARE PROFESSIONAL MAY, FOR DIAGNOS-
TIC  OR  TREATMENT PURPOSES, DISCLOSE SUCH INFORMATION TO ANOTHER HEALTH
CARE PROFESSIONAL, A LABORATORY OR A THIRD-PARTY TESTING FIRM. A  HEALTH
CARE  PROFESSIONAL,  LABORATORY  OR  THIRD-PARTY  TESTING  FIRM TO WHICH
INFORMATION IS DISCLOSED BY ANOTHER HEALTH CARE PROFESSIONAL SHALL  HOLD
SUCH INFORMATION CONFIDENTIAL.
S 23-1507. OPERATOR DISCLOSURES.
  1.  FOLLOWING  THE COMPLETION OF A HYDRAULIC FRACTURING TREATMENT ON A
WELL, THE OPERATOR SHALL INCLUDE IN THE WELL  COMPLETION  REPORT,  ON  A
FORM APPROVED BY THE DEPARTMENT:
  A.  THE MAXIMUM PUMP PRESSURE MEASURED AT THE SURFACE AND THE TYPE AND
VOLUME OF BASE FLUID USED IN EACH  STAGE  OF  THE  HYDRAULIC  FRACTURING
TREATMENT;
  B. A LIST OF ALL ADDITIVES USED IN THE HYDRAULIC FRACTURING TREATMENT,
SPECIFIED  BY  GENERAL  TYPE,  SUCH AS ACID, BIOCIDE, BREAKER, CORROSION

S. 5879                             4

INHIBITOR,  CROSSLINKER,  DEMULSIFIER,  FRICTION  REDUCER,   GEL,   IRON
CONTROL, OXYGEN SCAVENGER, PH ADJUSTING AGENT, PROPPANT, SCALE INHIBITOR
AND SURFACTANT;
  C.  FOR  EACH  ADDITIVE TYPE LISTED UNDER PARAGRAPH B OF THIS SUBDIVI-
SION, THE SPECIFIC NAME OF THE ADDITIVE USED  AND  THE  ACTUAL  RATE  OR
CONCENTRATION OF EACH ADDITIVE, EXPRESSED AS POUNDS PER THOUSAND GALLONS
OR  GALLONS PER THOUSAND GALLONS AND EXPRESSED AS A PERCENTAGE BY VOLUME
OF THE TOTAL HYDRAULIC FRACTURING FLUID USED;
  D. THE INFORMATION PROVIDED PURSUANT TO SUBDIVISION THREE  OF  SECTION
23-1505  OF  THIS  TITLE TO THE OPERATOR BY THE PERSON WHO PERFORMED THE
HYDRAULIC FRACTURING TREATMENT; AND
  E. IF THE OPERATOR CAUSED ANY ADDITIVES TO BE USED DURING THE  HYDRAU-
LIC  FRACTURING TREATMENT THAT ARE NOT REQUIRED TO BE DISCLOSED PURSUANT
TO SUBDIVISION THREE OF SECTION 23-1505 OF THIS TITLE TO THE OPERATOR BY
THE PERSON WHO PERFORMED THE HYDRAULIC FRACTURING TREATMENT:
  (1) A LIST OF THE ADDITIVES USED; AND
  (2) FOR EACH ADDITIVE LISTED, THE CHEMICAL CONSTITUENTS OF  THE  ADDI-
TIVE  AND  THEIR  ASSOCIATED  CAS NUMBERS AND THE ACTUAL RATE OR CONCEN-
TRATION OF EACH ADDITIVE OR CHEMICAL, EXPRESSED IN THE  MANNER  PROVIDED
PURSUANT TO SUBDIVISION THREE OF SECTION 23-1505 OF THIS TITLE.
  2.  THE  OPERATOR  MAY SUPPLY FIELD SERVICE COMPANY TICKETS, EXCLUDING
PRICING INFORMATION, AND  REPORTS  REGARDING  THE  HYDRAULIC  FRACTURING
TREATMENT,  AS USED IN THE NORMAL COURSE OF BUSINESS, TO SATISFY SOME OR
ALL OF THE REQUIREMENTS OF SUBDIVISION ONE OF THIS SECTION.
  3. NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH E OF SUBDIVISION ONE OF
THIS SECTION,  IF  THE  SPECIFIC  IDENTITY  OF  A  CHEMICAL  CONSTITUENT
CONTAINED  IN  AN  ADDITIVE IS ENTITLED TO BE WITHHELD AS A TRADE SECRET
PURSUANT TO THE CRITERIA PROVIDED BY 42 U.S.C  SECTION  11042(A)(2)  AND
SECTION  23-1511  OF  THIS TITLE, THE DEPARTMENT  SHALL PROTECT AND HOLD
CONFIDENTIAL THE IDENTITY OF THE CHEMICAL CONSTITUENT AND ITS ASSOCIATED
CAS NUMBER. TO QUALIFY FOR TRADE SECRET PROTECTION, THE  OPERATOR  SHALL
SUBMIT  TO THE DEPARTMENT ON AN APPROVED FORM A FORMAL CLAIM OF ENTITLE-
MENT TO THAT PROTECTION IN THE MANNER REQUIRED  BY  SECTION  23-1511  OF
THIS TITLE.
  4.  THE  PROVISIONS  OF SUBDIVISION THREE OF THIS SECTION SHALL NOT BE
DEEMED TO AUTHORIZE AN OPERATOR TO WITHHOLD INFORMATION THAT FEDERAL  OR
STATE LAW, INCLUDING THIS SECTION, REQUIRES TO BE PROVIDED TO ANY HEALTH
CARE  PROFESSIONAL WHO NEEDS THE INFORMATION FOR DIAGNOSTIC OR TREATMENT
PROPOSES. AN OPERATOR SHALL PROVIDE DIRECTLY TO A HEALTH   CARE  PROFES-
SIONAL,  IMMEDIATELY  ON REQUEST, ALL INFORMATION REQUIRED BY THE HEALTH
CARE PROFESSIONAL, INCLUDING THE  PERCENT  BY  VOLUME  OF  THE  CHEMICAL
CONSTITUENTS  OF THE HYDRAULIC FRACTURING FLUID AND THEIR ASSOCIATED CAS
NUMBERS. IN A CASE THAT IS NOT A  MEDICAL  EMERGENCY,  THE  HEALTH  CARE
PROFESSIONAL  SHALL PROVIDE THE OPERATOR A WRITTEN STATEMENT OF NEED FOR
THE INFORMATION BEFORE THE PERSON IS ENTITLED TO  RECEIVE  THE  INFORMA-
TION. IN A MEDICAL EMERGENCY, THE HEALTH CARE PROFESSIONAL SHALL PROVIDE
THE  OPERATOR A WRITTEN STATEMENT OF NEED FOR THE INFORMATION AS SOON AS
CIRCUMSTANCES PERMIT.
  5. A HEALTH CARE PROFESSIONAL TO WHOM INFORMATION IS DISCLOSED  PURSU-
ANT  TO  SUBDIVISION  FOUR  OF  THIS  SECTION SHALL HOLD THE INFORMATION
CONFIDENTIAL, EXCEPT THAT THE HEALTH CARE PROFESSIONAL MAY, FOR DIAGNOS-
TIC OR TREATMENT PROPOSES, DISCLOSE SUCH INFORMATION TO  ANOTHER  HEALTH
CARE  PROFESSIONAL, A LABORATORY OR A THIRD-PARTY TESTING FIRM. A HEALTH
CARE PROFESSIONAL, LABORATORY OR THIRD-PARTY TESTING FIRM TO WHICH  SUCH
INFORMATION  IS DISCLOSED BY ANOTHER HEALTH CARE PROFESSIONAL SHALL HOLD
THE INFORMATION CONFIDENTIAL.

S. 5879                             5

S 23-1509. USE OF SERVICES OF NONCOMPLYING SERVICE COMPANY PROHIBITED.
  AN OPERATOR SHALL NOT USE THE SERVICES OF ANOTHER PERSON IN PERFORMING
A  HYDRAULIC  FRACTURING TREATMENT IN THIS STATE UNLESS THE OTHER PERSON
IS IN COMPLIANCE WITH THE REQUIREMENTS OF SECTION 23-1505 OF THIS TITLE.
S 23-1511. TRADE SECRET PROTECTION.
  1. A CLAIM OF ENTITLEMENT TO TRADE SECRET PROTECTION PURSUANT TO  THIS
TITLE  SHALL INCLUDE SUBSTANTIATING FACTS IN THE FORM OF THE INFORMATION
REQUIRED BY 40 C.F.R. SECTION 350.7(A). IF REQUESTED BY THE TRADE SECRET
CLAIMANT, THE DEPARTMENT SHALL TREAT ANY SUCH  SUBSTANTIATING  FACTS  AS
CONFIDENTIAL  AND  SHALL  NOT  DISCLOSE  THEM  TO ANY THIRD PARTY OR THE
PUBLIC FOR ANY PURPOSE. UNTIL A FINAL DETERMINATION THAT THE INFORMATION
IS NOT ENTITLED TO TRADE SECRET PROTECTION IS MADE UNDER  THIS  SECTION,
THE  DEPARTMENT  SHALL  TREAT THE INFORMATION IMPLICATED BY THE CLAIM OF
TRADE SECRET ENTITLEMENT AS A CONFIDENTIAL TRADE SECRET, AND THE  INFOR-
MATION  IS  NOT  SUBJECT  TO  DISCLOSURE  PURSUANT TO ARTICLE SIX OF THE
PUBLIC OFFICERS LAW.
  2. THE COMMISSION SHALL DETERMINE A  CLAIM  OF  ENTITLEMENT  TO  TRADE
SECRET  PROTECTION  MADE  PURSUANT TO THIS TITLE TO BE SUFFICIENT IF THE
INFORMATION SET FORTH IN THE CLAIM  SUPPORTS  ALL  THE  CONCLUSIONS  SET
FORTH  IN  40 C.F.R. SECTION 350.13(A) AND THE SUPPORTING INFORMATION IS
TRUE. IN MAKING A DETERMINATION  AS  TO  A  CLAIM,  THE  DEPARTMENT  MAY
REQUIRE  THE  TRADE  SECRET  CLAIMANT  TO SUBMIT ADDITIONAL SUPPLEMENTAL
INFORMATION IF THE INFORMATION IS NECESSARY FOR THE DEPARTMENT  TO  MAKE
ITS  DETERMINATION  UNDER THIS SECTION. IF REQUESTED BY THE TRADE SECRET
CLAIMANT,  THE  DEPARTMENT  SHALL  TREAT  ANY  SUPPLEMENTAL  INFORMATION
PROVIDED  AS  CONFIDENTIAL  AND  MAY NOT DISCLOSE THE INFORMATION TO ANY
THIRD PARTY OR THE PUBLIC FOR ANY PURPOSE.
  3. IF THE DEPARTMENT DETERMINES A CLAIM OF ENTITLEMENT TO TRADE SECRET
PROTECTION TO BE INSUFFICIENT, THE DEPARTMENT  SHALL  NOTIFY  THE  TRADE
SECRET  CLAIMANT  IN WRITING OF THE DETERMINATION BY CERTIFIED MAIL. NOT
LATER THAN THE FIFTEENTH DAY AFTER THE DATE THE  TRADE  SECRET  CLAIMANT
RECEIVES  NOTICE  OF THE DETERMINATION, THE CLAIMANT MAY REQUEST ANOTHER
REVIEW OF THE CLAIM. THE TRADE SECRET CLAIMANT MUST SHOW GOOD CAUSE  FOR
THE  ADDITIONAL REVIEW. WHAT CONSTITUTES GOOD CAUSE FOR PURPOSES OF THIS
SUBDIVISION IS SOLELY WITHIN THE REASONABLE DISCRETION OF THE DEPARTMENT
AND MAY INCLUDE THE AVAILABILITY OF NEW SUPPORTING INFORMATION OR A GOOD
FAITH ERROR OR OMISSION ON THE PART OF THE TRADE SECRET CLAIMANT IN  THE
ORIGINAL  CLAIM.  NOT  LATER  THAN  THE THIRTIETH DAY AFTER THE DATE THE
DEPARTMENT RECEIVES THE REQUEST, THE DEPARTMENT  SHALL  PROVIDE  WRITTEN
NOTICE  TO  THE  TRADE SECRET CLAIMANT OF THE DEPARTMENT'S ACCEPTANCE OR
REJECTION OF THE REQUEST. IF A TRADE SECRET CLAIMANT MAKES A REQUEST FOR
REVIEW UNDER THIS SUBDIVISION, THE DEPARTMENT SHALL TREAT  THE  INFORMA-
TION  IMPLICATED BY THE CLAIM OF TRADE SECRET ENTITLEMENT AS A CONFIDEN-
TIAL TRADE SECRET UNTIL THE DEPARTMENT MAKES A DETERMINATION WITH REGARD
TO THE REVIEW REQUEST. IF THE DEPARTMENT REJECTS THE REVIEW REQUEST, THE
DEPARTMENT SHALL CONTINUE TO TREAT THE  INFORMATION  AS  A  CONFIDENTIAL
TRADE  SECRET  UNTIL THE EARLIER OF THE THIRTIETH DAY AFTER THE DATE THE
TRADE SECRET CLAIMANT RECEIVES NOTICE THAT THE DEPARTMENT  HAS  REJECTED
THE  REVIEW  REQUEST  OR  THE DATE THE CLAIMANT WITHDRAWS THE DISCLOSURE
PURSUANT TO SUBDIVISION FIVE OF THIS SECTION.
  4. NOT LATER THAN THE THIRTIETH DAY AFTER THE DATE  THE  TRADE  SECRET
CLAIMANT  RECEIVES  NOTICE  FROM  THE DEPARTMENT THAT THE DEPARTMENT HAS
REJECTED THE CLAIM OF ENTITLEMENT TO TRADE SECRET PROTECTION, THE CLAIM-
ANT MAY COMMENCE AN ACTION PURSUANT  TO  ARTICLE  SEVENTY-EIGHT  OF  THE
CIVIL  PRACTICE LAW AND RULES. IF A TRADE SECRET CLAIMANT COMMENCES SUCH
AN ACTION, THE DEPARTMENT SHALL TREAT THE INFORMATION IMPLICATED BY  THE

S. 5879                             6

CLAIM  OF  TRADE SECRET ENTITLEMENT AS A CONFIDENTIAL TRADE SECRET UNTIL
SUCH ACTION AND ALL APPEALS THEREOF ARE RESOLVED. IF THE ACTION  AFFIRMS
THE  DEPARTMENT'S  DETERMINATION  OF THE INSUFFICIENCY OF THE CLAIM, THE
DEPARTMENT  SHALL  CONTINUE  TO  TREAT THE INFORMATION AS A CONFIDENTIAL
TRADE SECRET UNTIL THE EARLIER OF THE THIRTIETH DAY AFTER THE  DATE  THE
TRADE  SECRET CLAIMANT RECEIVES NOTICE THAT THE ACTION HAS BEEN RESOLVED
OR THE DATE THE CLAIMANT WITHDRAWS THE DISCLOSURE PURSUANT  TO  SUBDIVI-
SION FIVE OF THIS SECTION.
  5.  NOT  LATER  THAN THE THIRTIETH DAY AFTER THE DATE THE TRADE SECRET
CLAIMANT RECEIVES NOTIFICATION THAT  THE  DEPARTMENT  HAS  REJECTED  THE
CLAIM  OF  ENTITLEMENT  TO  TRADE  SECRET PROTECTION OR THE DATE A FINAL
JUDGMENT AFFIRMING THE DEPARTMENT'S DETERMINATION OF  THE  INSUFFICIENCY
OF  THE CLAIM IS ENTERED, AS APPLICABLE, AND ONLY TO THE EXTENT THAT THE
RELEVANT CHEMICAL CONSTITUENT HAS NOT BEEN USED  BY  OR  FOR  THE  TRADE
SECRET CLAIMANT IN ANY HYDRAULIC FRACTURING TREATMENT IN THIS STATE, THE
TRADE SECRET CLAIMANT MAY FORMALLY WITHDRAW THE DISCLOSURE OF A CHEMICAL
CONSTITUENT  BY  NOTIFYING  THE DEPARTMENT OF ITS INTENT TO WITHDRAW THE
DISCLOSURE. IF THE TRADE SECRET CLAIMANT WITHDRAWS THE DISCLOSURE  OF  A
CHEMICAL CONSTITUENT, THE DEPARTMENT SHALL PROTECT AND HOLD CONFIDENTIAL
THE  IDENTITY  OF  THE  CHEMICAL  CONSTITUENT  AND ANY CORRESPONDING CAS
NUMBER, AND THE INFORMATION IS NOT SUBJECT  TO  DISCLOSURE  PURSUANT  TO
ARTICLE SIX OF THE PUBLIC OFFICERS LAW. AFTER THE WITHDRAWAL, THE CHEMI-
CAL CONSTITUENT SHALL NOT BE USED BY OR FOR THE TRADE SECRET CLAIMANT IN
ANY HYDRAULIC FRACTURING TREATMENT IN THIS STATE UNLESS THE TRADE SECRET
CLAIMANT  SATISFIES  THE  REQUIREMENTS  OF  THIS  TITLE  RELATING TO THE
DISCLOSURE OF INFORMATION REGARDING THE CHEMICAL CONSTITUENT.
  6. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE DEPARTMENT
MAY:
  A. DISCLOSE INFORMATION OTHERWISE SUBJECT TO TRADE  SECRET  PROTECTION
UNDER  THIS SECTION TO A THIRD-PARTY TESTING FIRM IN CONNECTION WITH THE
INVESTIGATION OF A CLAIM OF CONTAMINATION OF SURFACE WATER OR  GROUNDWA-
TER  IF THE FIRM AGREES IN WRITING TO KEEP THE INFORMATION CONFIDENTIAL;
AND
  B. USE THE RESULTS OF A TEST CONDUCTED BY A THIRD-PARTY  TESTING  FIRM
IN  CONNECTION  WITH  AN  INVESTIGATION DESCRIBED IN PARAGRAPH A OF THIS
SUBDIVISION IN ANY MANNER THE DEPARTMENT CONSIDERS NECESSARY TO  PROTECT
PUBLIC HEALTH AND THE ENVIRONMENT.
                                TITLE 16
                   REGULATION OF HYDRAULIC FRACTURING
SECTION 23-1601. DEFINITIONS.
        23-1603. CONCESSION OF LIABILITY.
        23-1605. AGREEMENTS WITH REAL PROPERTY OWNERS.
        23-1607. DAMAGES.
S 23-1601. DEFINITIONS.
  AS USED IN THIS TITLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
  1.  "HYDRAULIC FRACTURING" MEANS THE USE OF CHEMICALS, WATER AND OTHER
SUBSTANCES INJECTED OR PUMPED INTO A NATURAL GAS WELL TO  STIMULATE  THE
EXTRACTION OF NATURAL GAS.
  2.  "PRODUCER"  MEANS ANY INDIVIDUAL OR ENTITY ENGAGED IN THE DRILLING
FOR OR EXTRACTION OF NATURAL GAS THROUGH THE  UTILIZATION  OF  HYDRAULIC
FRACTURING.
S 23-1603. CONCESSION OF LIABILITY.
  1.  EVERY  PRODUCER,  PRIOR TO THE ISSUANCE OF ANY PERMIT, PURSUANT TO
THIS ARTICLE, TO ENGAGE  IN  HYDRAULIC  FRACTURING,  SHALL  EXECUTE  AND
DELIVER  TO  THE  DEPARTMENT A CONCESSION OF LIABILITY AND WAIVER OF ALL
DEFENSES ARISING OUT  OF  ANY  CAUSE  OF  ACTION  RELATED  TO  PROPERTY,

S. 5879                             7

PERSONAL  AND  WRONGFUL  DEATH  DAMAGES  ALLEGED  TO HAVE BEEN CAUSED BY
HYDRAULIC FRACTURING CONDUCTED BY SUCH  PRODUCER.  SUCH  CONCESSION  AND
WAIVER  SHALL BE EXECUTED IN SUCH FORM AND MANNER AS SHALL BE DETERMINED
BY  THE  ATTORNEY GENERAL, AND SHALL PROVIDE FOR STRICT LIABILITY TO THE
PEOPLE OF THE STATE OF NEW YORK AND EVERY PERSON WITHIN  THE  STATE  FOR
ANY  AND ALL DAMAGES ARISING FROM THE CONDUCTING OF HYDRAULIC FRACTURING
WITHIN THIS STATE.
  2. EVERY PRODUCER WHICH ENTERS INTO AN AGREEMENT WITH AN OWNER OF REAL
PROPERTY IN THIS  STATE WHICH PROVIDES FOR THE LEASE, LICENSE  OR  GRANT
OF  AUTHORITY  TO  CONDUCT HYDRAULIC FRACTURING UPON SUCH REAL PROPERTY,
SHALL  INCLUDE A COPY OF ITS CONCESSION OF LIABILITY  EXECUTED  PURSUANT
TO SUBDIVISION ONE OF THIS SECTION AND A SIMILAR CONCESSION OF LIABILITY
EXECUTED IN FAVOR OF THE REAL PROPERTY OWNER. SUCH CONCESSION OF LIABIL-
ITY  IN FAVOR OF A REAL PROPERTY OWNER SHALL BE IN SUCH FORM AS SHALL BE
DETERMINED BY THE ATTORNEY GENERAL.
S 23-1605. AGREEMENTS WITH REAL PROPERTY OWNERS.
  1. NO AGREEMENT FOR THE  LEASE,  LICENSE  OR  GRANT  OF  AUTHORITY  TO
CONDUCT  HYDRAULIC FRACTURING UPON REAL PROPERTY IN THIS STATE, SHALL BE
EXECUTED UNTIL THREE INDEPENDENT APPRAISALS OF THE VALUE  OF  SUCH  REAL
PROPERTY  HAVE BEEN CONDUCTED. SUCH APPRAISALS SHALL BE CONDUCTED AT THE
EXPENSE OF THE PRODUCER BY APPRAISERS  SELECTED  BY  THE  REAL  PROPERTY
OWNER. UPON COMPLETION OF SUCH APPRAISALS A COPY OF EACH APPRAISAL SHALL
BE PROVIDED TO THE REAL PROPERTY OWNER, THE PRODUCER AND THE DEPARTMENT,
AND  SHALL  BE ATTACHED TO EVERY AGREEMENT PROVIDING FOR HYDRAULIC FRAC-
TURING UPON SUCH REAL PROPERTY.
  2. NO AGREEMENT FOR THE  LEASE,  LICENSE  OR  GRANT  OF  AUTHORITY  TO
CONDUCT  HYDRAULIC FRACTURING UPON REAL PROPERTY IN THIS STATE, SHALL BE
EXECUTED UNTIL THE  DEPARTMENT  SHALL  HAVE  CONDUCTED  WATER  AND  SOIL
CONTAMINATION  TESTING  UPON  SUCH  REAL  PROPERTY  FOR  THE PRESENCE OF
HYDRAULIC FRACTURING FLUIDS. A REPORT OF THE  RESULTS  OF  SUCH  TESTING
SHALL BE PROVIDED TO BOTH THE REAL PROPERTY OWNER AND THE PRODUCER.
  3.  EACH PRODUCER SHALL INCLUDE IN EVERY AGREEMENT IT ENTERS INTO WITH
THE OWNER OF REAL PROPERTY IN THIS STATE FOR THE LEASE, LICENSE OR GRANT
OF AUTHORITY TO CONDUCT HYDRAULIC FRACTURING UPON SUCH REAL PROPERTY:
  A. A STATEMENT OF THE FINANCIAL, HEALTH AND ENVIRONMENTAL RISKS  POSED
BY  OR POTENTIALLY POSED BY CONDUCT OF HYDRAULIC FRACTURING. SUCH STATE-
MENT SHALL BE JOINTLY DEVELOPED AND PERIODICALLY UPDATED BY THE  COMMIS-
SIONER, THE ATTORNEY GENERAL AND THE COMMISSIONER OF HEALTH;
  B.  A  STATEMENT  OF THE RISKS OF GROUND SOIL AND GROUND WATER CONTAM-
INATION POSED BY OR POTENTIALLY POSED BY THE CONDUCT OF HYDRAULIC  FRAC-
TURING;
  C.  A  STATEMENT  OF  THE  HEALTH RISKS POSED BY SPILLS OF AND CONTAM-
INATION BY HYDRAULIC FRACTURING FLUIDS; AND
  D. A STATEMENT OF THE PRODUCER'S STRICT  LIABILITY  FOR  ANY  AND  ALL
DAMAGES  RESULTING  FROM THE CONDUCTING OF HYDRAULIC FRACTURING, AND THE
DAMAGES THAT WILL BE AWARDED THEREFOR PURSUANT TO THIS TITLE.
S 23-1607. DAMAGES.
  1. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO  THE  CONTRARY,  UPON
THE  CONTAMINATION  OF  GROUND SOIL AND/OR GROUND WATER BY ANY PRODUCER,
SUCH PRODUCER SHALL BE LIABLE FOR THE FOLLOWING DAMAGES:
  A. TO THE AFFECTED REAL PROPERTY OWNER, AN AMOUNT EQUAL TO ONE HUNDRED
FIFTY PERCENT OF THE REAL PROPERTY  VALUE,  AS  DETERMINED  PURSUANT  TO
SUBDIVISION  ONE  OF SECTION 23-1605 OF THIS TITLE, AND THE FULL COST OF
REMEDIATING THE CONTAMINATED GROUND SOIL AND GROUND WATER; AND
  B. TO ANY PERSON AFFECTED BY SUCH CONTAMINATION, AN  AMOUNT  EQUAL  TO
THE  COST  OF  THE  DIAGNOSIS,  TREATMENT,  MONITORING  AND CARE OF SUCH

S. 5879                             8

PERSON, FOR LIFE, RELATED TO ANY DISEASE OR  CONDITION  ARISING  OUT  OF
SUCH CONTAMINATION.
  2.  UNDER NO CIRCUMSTANCES SHALL ANY AMOUNT OF DAMAGES AWARDED OR PAID
PURSUANT TO THIS SECTION BE DEEMED TO BE INCOME TO ANY PERSON.  ALL SUCH
DAMAGES SHALL BE REIMBURSEMENT  FOR  LOSSES  ACTUALLY  INCURRED  BY  THE
RECIPIENT THEREOF.
  S 2. Subdivision 9 of section 8-0109 of the environmental conservation
law,  as added by chapter 219 of the laws of 1990, is amended to read as
follows:
  9. An environmental impact statement shall be prepared for any  action
found to have a significant impact on the special groundwater protection
area,  as  defined in section 55-0107 of this chapter OR FOR ANY NATURAL
GAS OR OIL DRILLING INVOLVING THE USE  OF  HYDRAULIC  FRACTURING  FLUID.
Such statement shall meet the requirements of the most detailed environ-
mental  impact statement required by this section or by any such rule or
regulation promulgated pursuant to this section.
  S 3. Subdivision 2 of section 23-0303 of the  environmental  conserva-
tion  law  is  REPEALED,  and  a  new  subdivision 2 is added to read as
follows:
  2. FOR THE PURPOSES STATED HEREIN, THIS SECTION  SHALL  SUPERSEDE  ALL
OTHER  STATE AND LOCAL LAWS RELATING TO THE OIL, GAS AND SOLUTION MINING
INDUSTRIES; PROVIDED, HOWEVER, THAT NOTHING IN  THIS  SECTION  SHALL  BE
CONSTRUED TO PREVENT ANY LOCAL GOVERNMENT FROM:
  A.  ENACTING OR ENFORCING LOCAL LAWS OR ORDINANCES OF GENERAL APPLICA-
BILITY, EXCEPT THAT SUCH LOCAL LAWS OR  ORDINANCES  SHALL  NOT  REGULATE
OIL,  GAS  AND SOLUTION MINING REGULATED BY STATE STATUTE, REGULATION OR
PERMIT; OR
  B. ENACTING OR ENFORCING LOCAL ZONING ORDINANCES OR LAWS WHICH  DETER-
MINE  PERMISSIBLE  USES IN ZONING DISTRICTS. WHERE OIL, GAS AND SOLUTION
MINING IS DESIGNATED A PERMISSIBLE USE IN A ZONING DISTRICT AND  ALLOWED
BY  SPECIAL  USE  PERMIT,  CONDITIONS PLACED ON SUCH SPECIAL USE PERMITS
SHALL BE LIMITED TO THE FOLLOWING:
  (I) INGRESS AND EGRESS TO PUBLIC THOROUGHFARES CONTROLLED BY THE LOCAL
GOVERNMENT;
  (II) ROUTING OF DRILLING AND DRILLING-RELATED  TRANSPORT  VEHICLES  ON
ROADS CONTROLLED BY THE LOCAL GOVERNMENT;
  (III) REQUIREMENTS AND CONDITIONS AS SPECIFIED IN THE PERMIT ISSUED BY
THE  DEPARTMENT  CONCERNING  SETBACK FROM PROPERTY BOUNDARIES AND PUBLIC
THOROUGHFARE RIGHTS-OF-WAY, NATURAL OR  MAN-MADE  BARRIERS  TO  RESTRICT
ACCESS, IF REQUIRED, DUST CONTROL AND HOURS OF OPERATION; AND
  (IV)  CONFORMANCE  TO  ROAD CONSTRUCTION STANDARDS AS MAY BE OTHERWISE
PROVIDED FOR BY LOCAL LAW; OR
  C. ENACTING OR ENFORCING LOCAL LAWS OR ORDINANCES REGULATING OIL,  GAS
AND SOLUTION MINING NOT REQUIRED TO BE PERMITTED BY THE STATE.
  S  4.  This act shall take effect on the first of June next succeeding
the date on which it shall have become a law; provided, that,  effective
immediately,  any  actions necessary to implement the provisions of this
act on its effective date are authorized and directed to be completed on
or before such date.

S5879A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A8805A
Current Committee:
Law Section:
Environmental Conservation Law
Laws Affected:
Add Art 23 Title 15 §§23-1501 - 23-1511 & Title 16 §§23-1601 - 23-1607, amd §8-0109, rpld & add §23-0303 sub 2, En Con L

S5879A (ACTIVE) - Bill Texts

view summary

Provides for the regulation of the conducting of hydraulic fracturing; requires producers to disclose the composition of hydraulic fracturing fluids to the department of environmental conservation; provides that producers using hydraulic fracturing are strictly liable for any and all damages arising from such practice; requires all such producers to concede liability; provides for damages.

view sponsor memo
BILL NUMBER:S5879A

TITLE OF BILL:
An act
to amend the environmental conservation law, in relation to regulation
of the extraction of natural gas by means of hydraulic fracturing; and to
repeal subdivision 2 of section 23-0303 of such law relating to
exclusivity of state authority over mining

PURPOSE:
This legislation will create the "Property Owners Bill of Rights"

SUMMARY OF PROVISIONS:
Section One - amends the environmental conservation law by adding two
new titles, 15 and 16 to Article 23.

Title 15 - Defines the disclosure of composition of hydraulic
fracturing fluids. This title includes definitions, the type of
information submitted that is considered public, service company
disclosures, operator disclosers and defines what use of service of
non-complying service company is prohibited.

Section One - defines an "additive" as any substance or combination of
substances found in hydraulic fracturing fluid, including a proppant,
that is added to a base fluid in the context of a hydraulic
fracturing treatment. Defines "Base Fluid" as the base fluid type,
such as water or nitrogen foam, used in a particular hydraulic
fracturing treatment. Defines "Chemical Abstracts Service" or CAS" as
the chemical registry that is the authoritative collection of
disclosed chemical substance information. Defines "chemical
constituent" as a discrete chemical with its own specific name or
identity, such as CAS number, that is contained in an additive"
Defines "hydraulic fracturing fluid" as the fluid used to perform a
particular hydraulic fracturing treatment and includes the applicable
base fluid and all additives." Defines "hydraulic fracturing
treatment" as the stimulation of a well by the forceful application
of hydraulic fracturing fluid into the relevant geological formation
for the purpose of creating fractures in the formation in order to
facilitate production of hydrocarbons. Defines "operator" as the
person authorized to conduct operations on a well. Defines "Propp
ant" as sand or another natural or man-made inert material that
is used in a hydraulic fracturing treatment to prevent artificially
created or enhanced fractures from closing once the treatment is
completed. Defines "trade secret" as any confidential
formula, pattern, process, device, information or complication of
information that is used in a person's business and that gives the
person an opportunity to obtain an advantage over competitors that do
not know or use it. Defines "well" as hydrocarbon production well.
Defines "well completion report" as the report an operator is
required to file with the commission following the completion or
recompletion of a well, if applicable.

Section One - states all this information submitted under this section
in the disclosure of composition of hydraulic fracturing fluids is
considered public and will be posting on the internet.


Section One - states unless the information is otherwise authorized to
be withheld as a trade secret, the chemicals used in hydrofracking
will be public information and the department will post the
information on its publicly accessible internet website. To qualify
for trade secret protection, the person performing the hydraulic
fracturing treatment must submit to the department on an approved
form a formal claim of entitlement to that protection. Under this law
trade secret does not authorize a person to withhold information as
stated in federal or state law to a health professional who needs
such information for diagnostic or treatment purposes. If a health
care professional requests the information, a person performing
hydraulic fracturing will provide the percent by volume of the
chemical constituents of the hydraulic fracturing fluid and their
associated CAS numbers. If it is not a medical emergency, the health
care professional will provide the person performing the hydraulic
fracturing treatment a written statement of need for the information.
The health care professional will keep this information confidential,
except with other health care professionals for medical treatment.

Section One - describes the Service Company Disclosures as a person
performing hydraulic fracturing treatments will disclose to the
department and maintain an updated master list of:
a) All base fluids to be used by the person during hydraulic
fracturing treatment;
b) All additives used by the person in any hydraulic fracturing
treatment, and their associated CAS numbers;
c) All chemical constituents to be used in hydraulic fracturing
treatment in this state.

Section One - states a person performing hydraulic fracturing
treatments will provide to the operator of each well the following:
a) The maximum pump pressure measured at the surface and the type and
volume of base fluid used in each stage of the hydraulic fracturing
treatment;
b) A list of all additives used in the hydraulic fracturing fluid,
such as acid, biocide, breaker, corrosion inhibitor, crosslinker,
demulsifier, friction reducer, gel, iron control, oxygen scavenger,
pH adjusting agent, proppant, scale inhibitor and surfactant;
c) For each additive type listed under paragraph b of this
subdivision, the specific name of the additive used and the actual
rate or concentration of each additive, expressed as pounds per
thousand gallons or gallons per thousand gallons and expressed as a
percentage by volume of the total hydraulic fracturing fluid used;
d) A list of the all the chemical constituents used in the hydraulic
fracturing fluid and their associated CAS numbers, unless the
identity of any chemical constituent is a trade secret;

e) For each chemical constituent, the actual rate or concentration of
each chemical expressed as pounds per thousand gallons or gallons per
thousand gallons and expressed as a percentage by volume of the total
hydraulic fracturing fluid used;

Section One - states following the completion of hydraulic fracturing
treatment on a property, the operator will include in a well
completion report the following information:
a) The maximum pump pressure measured at the surface and the type and
volume of base fluid used in each stage of the hydraulic fracturing


treatment;
b) A list of all additives used in the hydraulic fracturing treatment;
c) For each additive, the specific name of the additive used and the
actual rate or concentration of each additives;
d) The complete information of who performed the hydraulic fracturing
treatment;
e) If the operator caused any additives to be used during the hydraulic
fracturing treatment Section states for each additive listed the
chemical constituents of the additive and their associated CAS
numbers and the actual rate or concentration of each additive or
chemical, expressed in the manner provided.

Section One - states the operator may supply field service company
tickets, excluding pricing information, and reports regarding the
hydraulic fracturing treatment, as used in the normal course of
business, to satisfy some or all of the requirements.

Title 16 - describes the regulation of hydraulic fracturing, which
includes definitions, concession of liability and agreements with
property owners and damages.

Section One - defines "hydraulic fracturing" as the use of chemicals,
water and other substances injected or pumped into a natural gas well
to stimulate the extraction of natural gas well to stimulate the
extraction of natural gas. Defines "producer" as any individual or
entity engaged in the drilling for or extraction of natural gas
through the utilization of hydraulic fracturing.

Section One - states prior to the issuance of any permit, to engage in
hydraulic fracturing will deliver to the department a concession of
liability and waiver of all defenses arising out of any cause of
action related to property personal and wrongful death damages
alleged to have been caused by hydraulic fracturing conducted by such
producer. Concession and waiver shall be executed in such form and
manner as shall be determined by the attorney general, and will
provide for strict liability to the people of the state of New York
and every person within the state for any and all damages arising
from the conducting of hydraulic fracturing within this state. Every
producer which enter into an agreement with an owner of real property
which provides for the lease, license or grant of authority to
conduct hydraulic fracturing upon such real property, shall include a
copy of its concession of liability, similar to the concession of
liability executed in favor of the real property owner. The
concession of liability will be determined by the attorney general.

Section One - states no agreement for the lease, license or grant of
authority to conduct hydraulic fracturing upon real property in new
York will be executed until three independent appraisals of the real
property value have been done. Upon completion of the appraisals a copy
of the appraisal will be provided to the real property owner, the
producer and the department and will be attached to every agreement
providing for hydraulic fracturing.

Section One - states no agreement for the lease, license or grant of
authority to conduct hydraulic fracturing will be executed until the
department has conducted water and soil contamination testing on the
property for the presence of hydraulic fracturing fluids. A report of


the results of the test will be provided to both the real property
owner and the producer.

Section One - states each producer will include in every agreement it
enters into with a property owner for the lease, license or grant of
authority to conduct hydraulic fracturing the following:
a) A statement of the financial, health and environmental risks posed
by or potentially posed by conduct of hydraulic fracturing. This
statement will be jointly developed and periodically updated by the
commissioner, attorney general and the commissioner of health;
b) A statement of the risks of ground soil and ground water
contamination posed by or potentially posed by the conduct of
hydraulic fracturing;
c) A statement of the health risks posed by spills of and
contamination by hydraulic fracturing fluids;
d) A statement of the producer's strict liability for any and all
damages resulting from the conducting of hydraulic fracturing, and
the damages that will be awarded there for pursuant to this title.

Section One - states if there is contamination of the ground soil/or
ground water by any producer, the producer will be liable for the
following damages:
a) To the affected real property owner, an amount equal to one hundred
fifty percent of the real property value, as determined pursuant to
subdivision one of section 23 - 1605 of this title, and the full cost
of remediating the contaminated ground soil and ground water;
b) To any person affected by such contamination, an amount equal to
the cost of the diagnosis, treatment, monitoring and care of such
person, for life, related to any disease or condition arising out of
such contamination.

Under no circumstances will any amount of damages awarded or paid
pursuant to this section be deemed to be income to any person. All
such damages will be a reimbursement for losses actually incurred by
the recipient thereof.

Section Two - amends subdivision 9 of section 8-0109 of the
environmental conservation law to add an environmental impact
statement will be prepared for any action found to have a significant
impact on the special groundwater protection area, for any natural
gas or oil drilling involving the use of hydraulic fracturing fluid.
This statement will meet the requirements of the most detailed
environmental impact statement required by this section or by any
rule or regulation promulgated.

Section Three - repeals subdivision 2 of section 23 - 0303 of the
environmental conservation law and adds a new subdivision 2 to
supersede all other state and local laws relating to the oil, gas and
solution mining industries, provided that nothing in this section
will prevent any local government from:
a) Enacting or enforcing local laws or ordinances of general
applicability, except that such local laws or ordinances will not
regulate oil, gas and solution mining regulated by state statute,
regulation or permit;
b) Enacting or enforcing local zoning ordinances or laws which
determine permissible uses in zoning districts. Where oil, gas and
solution mining is designed a permissible use in a zoning district


and allowed by special use permit, condition placed on such special
use permits will be limited to the following:
i. Ingress and egress to public thoroughfares controlled by the local
government;
ii. Routing of drilling and drilling-related transport vehicles on
roads controlled by the local government;
iii. Requirements and conditions as specified in permit issued by the
department concerning setback from property boundaries and public
thoroughfare rights-of-way, natural or man-made barriers to restrict
access, if required, dust control and hours of operation;
iv. Conformance to road construction standards as may be otherwise
provided for by local law;

Section Three - states enacting or enforcing local laws or ordinances
regulating oil, gas and solution mining not required to be permitted
by the state.

Section Four - states this act shall take effect on the first of June
next succeeding the date on which it becomes a law; provided, that
effective immediately, any actions necessary to implement the
provisions of this act on its effective date are authorized and
directed to be completed on or before such date.

JUSTIFICATION:
This legislation creates the "Property Owners Bill of Rights," This
bill provides definitions for hydraulic fracturing fluid, hydraulic
fracturing treatment, chemical abstracts service, chemical
constituent, base fluid, operator, proppant, trade secret, well and
well completion report.

This bill will protect property owners if they decide to lease their
property for the use of hydraulic fracturing. This legislation will
also protect surrounding property owner's safety and financial well
being from the negative effects of hydraulic fracturing.

This legislation adds Title 15 and 16 to the environmental
conservation law. Title 15 mandates the disclosure of composition of
hydraulic fracturing fluids by any company or individual that is
involved in the process of hydraulic fracturing in New York State.
Companies will be expected to fully disclose every chemical in the
fracturing fluid being used for the purpose of hydraulic fracturing.
In order to create full transparency for all property owners, these
chemicals will be made public knowledge and available on the internet.

Title 15 also defines the type of information submitted that is
considered public and a trade secret. This legislation also defines a
trade secret, and the process by which a company can define a product
a trade secret. However, this legislation does not authorize a person
to withhold information as stated in federal or state law to a health
professional who needs such information for diagnostic or treatment
purposes. If a health care professional requests the information, a
person performing hydraulic fracturing will provide the percent by
volume of the chemical constituents of the hydraulic fracturing fluid
and their associated CAS numbers. If a property owner is signs a
lease and authorizes the use of their land, they have a right to know
any and all chemicals that are being put into their property, as well
as the amount and rate of which these chemicals are being used.


In order to protect property owner's safety, any person performing
hydraulic fracturing treatments will disclose to the department and
maintain an updated master list of; all base fluids to be used by the
person during hydraulic fracturing treatment, all additives used by
the person in any hydraulic fracturing treatment, and their
associated CAS numbers; and all chemical constituents to be used in
hydraulic fracturing treatment in this state. All of this information
will be made available in a "Well Completion Report" and will be made
available to the public.

The creation of Title 15 will ensure transparency for property owners
in regards to hydraulic fracturing in the State of New York. Title 15
will give property owners the knowledge they need to go into a lease
agreement fully informed of all the chemicals used in hydraulic
fracturing.

The "Property Owner's Bill of Rights" includes the addition of Title
16 to the environmental conservation law. Title 16 describes the
regulation of hydraulic fracturing, which includes definitions,
concession of liability and agreements with property owners as well
as damages.

Title 16 states prior to the issuance of any permit, to engage in
hydraulic fracturing will deliver to the department a concession of
liability and waiver of all defenses arising out of any cause of
action related to property personal and wrongful death damages
alleged to have been caused by hydraulic fracturing conducted by such
producer. Concession and waiver will be executed in such form and
manner as shall be determined by the attorney general, and will
provide for strict liability to the people of the state of New York
and every person within the state for any and all damages arising
from the conducting of hydraulic fracturing within this state.

Title 16 protects New York state property owner's by stating no
agreement for the lease, license or grant of authority to conduct
hydraulic fracturing upon real property in new York will be executed
until three independent appraisals of the real property value have
been done. Upon completion of the appraisals a copy of the appraisal
will be provided to the real property owner, the producer and the
department and will be attached to every agreement providing for
hydraulic fracturing.

Under this legislation no agreement for the lease, license or grant of
authority to conduct hydraulic fracturing will be executed until the
department has conducted water and soil contamination testing on the
property for the presence of hydraulic fracturing fluids. A report of
the results of the test will be provided to both the real property
owner and the producer.

Title 16 ensures property owners are fully informed on the risks of
hydraulic fracturing to their land, homes, financial well being and
health. Each producer will include in every agreement it enters into
with a property owner for the lease, license or grant of authority to
conduct hydraulic fracturing the following:

a) A statement of the financial, health and environmental risks posed
by or potentially posed by conduct of hydraulic fracturing. This


statement will be jointly developed and periodically updated by the
commissioner, attorney general and the commissioner of health;
c) A statement of the risks of ground soil and ground water
contamination posed by or potentially posed by the conduct of
hydraulic fracturing;
d) A statement of the health risks posed by spills of and
contamination by hydraulic fracturing fluids;
e) A statement of the producer's strict liability for any and all
damages resulting from the conducting of hydraulic fracturing, and
the damages that will be awarded there for pursuant to this title.

Title 16 protects property owners by addressing the issue of damages.
If there is contamination of the ground soil/or ground water by any
producer, the producer will be liable for the following damages; an
amount equal to one hundred fifty percent of the real property value,
and the full cost of remediating the contaminated ground soil and
ground water. Damages include that any person affected by such
contamination, an amount equal to the cost of the diagnosis,
treatment, monitoring and care of such person, for life, related to
any disease or condition arising out of such contamination.

Title 16 also states, to protect a property owner, an environmental
impact statement will be prepared for any action found to have a
significant impact on the special groundwater protection area, for
any natural gas or oil drilling involving the use of hydraulic
fracturing fluid. This statement will meet the requirements of the
most detailed environmental impact statement required by this section
or by any rule or regulation promulgated.

Title 16 provides that nothing in this section will prevent any local
government from enacting or enforcing local laws or ordinances of
general applicability, except that such local laws or ordinances will
not regulate oil, gas and solution mining regulated by state statute,
regulation or permit. Title 16 stipulates that enacting or enforcing
local zoning ordinances or laws, which determine permissible uses in
zoning districts. Where oil, gas and solution mining is designed a
permissible use in a zoning district and allowed by special use
permit, condition placed on such special use permits will be limited
to the following; ingress and egress to public thoroughfares
controlled by the local government, routing of drilling and
drilling-related transport vehicles on road controlled by the local
government, requirements and conditions as specified in permit issued
by the department concerning setback from property boundaries and
public thoroughfare rights-of-way, natural or man-made barriers to
restrict access, if required, dust control and hours of operation,
and the conformance to road construction standards as may be
otherwise provided for by local law.

LEGISLATIVE HISTORY:
New legislation.

FISCAL IMPLICATIONS:
To be determined.

EFFECTIVE DATE:
This act shall take effect on the first of June next succeeding the
date on which it becomes a law;


provided, that effective immediately, any actions necessary to
implement the provisions of this act on its effective date are
authorized and directed to be completed on or before such date.

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

                                 5879--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            September 9, 2011
                               ___________

Introduced  by  Sen.  BALL  --  read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Rules  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the environmental conservation law, in relation to regu-
  lation of the extraction of natural gas by means of hydraulic fractur-
  ing; and to repeal subdivision 2 of section 23-0303 of such law relat-
  ing to exclusivity of state authority over mining

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

  Section 1. Article 23 of the environmental conservation law is amended
by adding two new titles 15 and 16 to read as follows:
                                TITLE 15
                      DISCLOSURE OF COMPOSITION OF
                       HYDRAULIC FRACTURING FLUIDS
SECTION 23-1501.  DEFINITIONS.
        23-1503.  INFORMATION SUBMITTED CONSIDERED  PUBLIC;  POSTING  ON
                    INTERNET WEBSITE.
        23-1505.  SERVICE COMPANY DISCLOSURES.
        23-1507.  OPERATOR DISCLOSURES.
        23-1509.  USE   OF  SERVICES  OF  NONCOMPLYING  SERVICE  COMPANY
                    PROHIBITED.
        23-1511. TRADE SECRET PROTECTION.
S 23-1501. DEFINITIONS.
  AS USED IN THIS TITLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
  1. "ADDITIVE" MEANS ANY SUBSTANCE OR COMBINATION OF  SUBSTANCES  FOUND
IN  A HYDRAULIC FRACTURING FLUID, INCLUDING A PROPPANT, THAT IS ADDED TO
A BASE FLUID IN THE CONTEXT OF A HYDRAULIC FRACTURING TREATMENT.
  2. "BASE FLUID" MEANS THE BASE FLUID TYPE, SUCH AS WATER  OR  NITROGEN
FOAM, USED IN A PARTICULAR HYDRAULIC FRACTURING TREATMENT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13392-04-1

S. 5879--A                          2

  3.  "CHEMICAL  ABSTRACTS SERVICE" OR "CAS" MEANS THE CHEMICAL REGISTRY
THAT IS THE AUTHORITATIVE COLLECTION  OF  DISCLOSED  CHEMICAL  SUBSTANCE
INFORMATION.
  4.  "CHEMICAL  CONSTITUENT"  MEANS  A  DISCRETE  CHEMICAL WITH ITS OWN
SPECIFIC NAME OR IDENTITY, SUCH AS A CAS NUMBER, THAT IS CONTAINED IN AN
ADDITIVE.
  5. "HYDRAULIC FRACTURING FLUID" MEANS THE  FLUID  USED  TO  PERFORM  A
PARTICULAR  HYDRAULIC  FRACTURING  TREATMENT AND INCLUDES THE APPLICABLE
BASE FLUID AND ALL ADDITIVES.
  6. "HYDRAULIC FRACTURING TREATMENT" MEANS THE STIMULATION OF A WELL BY
THE FORCEFUL APPLICATION OF HYDRAULIC FRACTURING FLUID INTO THE RELEVANT
GEOLOGICAL FORMATION FOR THE PURPOSE OF CREATING FRACTURES IN THE FORMA-
TION IN ORDER TO FACILITATE PRODUCTION OF HYDROCARBONS.
  7. "OPERATOR" MEANS THE PERSON OR ENTITY AUTHORIZED TO  CONDUCT  OPER-
ATIONS ON A WELL.
  8. "PROPPANT" MEANS SAND OR ANOTHER NATURAL OR MAN-MADE INERT MATERIAL
THAT IS USED IN A HYDRAULIC FRACTURING TREATMENT TO PREVENT ARTIFICIALLY
CREATED  OR  ENHANCED  FRACTURES  FROM  CLOSING  ONCE  THE  TREATMENT IS
COMPLETED.
  9. "TRADE SECRET" MEANS ANY CONFIDENTIAL  FORMULA,  PATTERN,  PROCESS,
DEVICE,  INFORMATION  OR  COMPILATION  OF  INFORMATION THAT IS USED IN A
PERSON'S OR ENTITY'S BUSINESS AND THAT GIVES SUCH PERSON  OR  ENTITY  AN
OPPORTUNITY  TO OBTAIN AN ADVANTAGE OVER COMPETITORS THAT DO NOT KNOW OR
USE IT.
  10. "WELL" MEANS A HYDROCARBON PRODUCTION WELL.
  11. "WELL COMPLETION REPORT" MEANS THE REPORT AN OPERATOR IS  REQUIRED
TO  FILE WITH THE COMMISSION FOLLOWING THE COMPLETION OR RECOMPLETION OF
A WELL, IF APPLICABLE.
S 23-1503. INFORMATION SUBMITTED CONSIDERED PUBLIC; POSTING ON  INTERNET
             WEBSITE.
  NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, UNLESS THE INFORMATION IS
OTHERWISE  AUTHORIZED  TO BE WITHHELD AS A TRADE SECRET PURSUANT TO THIS
TITLE, INFORMATION SUBMITTED  TO  THE  DEPARTMENT  PURSUANT  TO  SECTION
23-1505  OR 23-1507 OF THIS TITLE IS PUBLIC INFORMATION, AND THE DEPART-
MENT SHALL POST THE INFORMATION  ON  ITS  PUBLICLY  ACCESSIBLE  INTERNET
WEBSITE.
S 23-1505. SERVICE COMPANY DISCLOSURES.
  1.    AN  OPERATOR  WHICH  AUTHORIZES  ANY PERSON OR ENTITY TO CONDUCT
HYDRAULIC FRACTURING TREATMENTS UPON ANY OF  SUCH  OPERATOR'S  WELLS  IN
THIS  STATE  SHALL  DISCLOSE  TO  THE DEPARTMENT AND MAINTAIN AN UPDATED
MASTER LIST OF:
  A. ALL BASE FLUIDS TO BE USED BY SUCH  PERSON  OR  ENTITY  DURING  ANY
HYDRAULIC FRACTURING TREATMENT IN THIS STATE;
  B.  ALL  ADDITIVES  TO  BE  USED  BY  SUCH PERSON OR ENTITY DURING ANY
HYDRAULIC FRACTURING TREATMENT IN THIS STATE; AND
  C. ALL CHEMICAL CONSTITUENTS TO BE USED BY SUCH PERSON  OR  ENTITY  IN
ANY  HYDRAULIC  FRACTURING  TREATMENT IN THIS STATE AND THEIR ASSOCIATED
CAS NUMBERS.
  2. NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH C OF SUBDIVISION ONE OF
THIS SECTION, IF THE SPECIFIC IDENTIFY OF ANY CHEMICAL CONSTITUENT TO BE
USED IN ANY HYDRAULIC FRACTURING TREATMENT IN THIS STATE IS ENTITLED  TO
BE  WITHHELD  AS  A TRADE SECRET PURSUANT TO THE CRITERIA PROVIDED BY 42
U.S.C. SECTION 11042(A)(2)  AND  SECTION  23-1511  OF  THIS  TITLE,  THE
DEPARTMENT SHALL PROTECT AND HOLD CONFIDENTIAL THE IDENTITY OF THE CHEM-
ICAL  CONSTITUENT  AND  ITS  ASSOCIATED CAS NUMBER. TO QUALIFY FOR TRADE
SECRET PROTECTION, THE PERSON PERFORMING THE HYDRAULIC FRACTURING TREAT-

S. 5879--A                          3

MENT MUST SUBMIT TO THE DEPARTMENT ON AN APPROVED FORM A FORMAL CLAIM OF
ENTITLEMENT TO THAT PROTECTION IN THE MANNER REQUIRED BY SECTION 23-1511
OF THIS TITLE.
  3.  A  PERSON  OR ENTITY PERFORMING HYDRAULIC FRACTURING TREATMENTS IN
THIS STATE SHALL PROVIDE TO THE OPERATOR OF  EACH  WELL  FOR  WHICH  THE
PERSON OR ENTITY PERFORMS A HYDRAULIC FRACTURING TREATMENT:
  A.  THE MAXIMUM PUMP PRESSURE MEASURED AT THE SURFACE AND THE TYPE AND
VOLUME OF BASE FLUID USED IN EACH  STAGE  OF  THE  HYDRAULIC  FRACTURING
TREATMENT;
  B.  A  LIST  OF  ALL ADDITIVES USED IN THE HYDRAULIC FRACTURING FLUID,
SPECIFIED BY GENERAL TYPE, SUCH AS  ACID,  BIOCIDE,  BREAKER,  CORROSION
INHIBITOR,   CROSSLINKER,   DEMULSIFIER,  FRICTION  REDUCER,  GEL,  IRON
CONTROL, OXYGEN SCAVENGER, PH ADJUSTING AGENT, PROPPANT, SCALE INHIBITOR
AND SURFACTANT;
  C. FOR EACH ADDITIVE TYPE LISTED UNDER PARAGRAPH B  OF  THIS  SUBDIVI-
SION,  THE  SPECIFIC  NAME  OF  THE ADDITIVE USED AND THE ACTUAL RATE OR
CONCENTRATION OF EACH ADDITIVE, EXPRESSED AS POUNDS PER THOUSAND GALLONS
OR GALLONS PER THOUSAND GALLONS AND EXPRESSED AS A PERCENTAGE BY  VOLUME
OF THE TOTAL HYDRAULIC FRACTURING FLUID USED;
  D. A LIST OF ALL THE CHEMICAL CONSTITUENTS USED IN THE HYDRAULIC FRAC-
TURING FLUID AND THEIR ASSOCIATED CAS NUMBERS, EXCEPT TO THE EXTENT THAT
THE  SPECIFIC  IDENTITY  OF  ANY  CHEMICAL CONSTITUENT IS ENTITLED TO BE
WITHHELD AS A TRADE SECRET  AS  PROVIDED  BY  SUBDIVISION  TWO  OF  THIS
SECTION; AND
  E.  FOR EACH CHEMICAL CONSTITUENT IDENTIFIED UNDER PARAGRAPH D OF THIS
SUBDIVISION,  THE  ACTUAL  RATE  OR  CONCENTRATION  OF  EACH   CHEMICAL,
EXPRESSED AS POUNDS PER THOUSAND GALLONS OR GALLONS PER THOUSAND GALLONS
AND  EXPRESSED AS A PERCENTAGE BY VOLUME OF THE TOTAL HYDRAULIC FRACTUR-
ING FLUID USED.
  4. THE PROVISIONS OF SUBDIVISIONS TWO AND THREE OF THIS SECTION  SHALL
NOT  BE  DEEMED  TO AUTHORIZE ANY OPERATOR, PERSON OR ENTITY TO WITHHOLD
INFORMATION THAT FEDERAL OR STATE LAW, INCLUDING THIS SECTION,  REQUIRES
TO BE PROVIDED TO ANY HEALTH CARE PROFESSIONAL WHO NEEDS THE INFORMATION
FOR  DIAGNOSTIC OR TREATMENT PURPOSES. THE OPERATOR AND PERSON OR ENTITY
PERFORMING A HYDRAULIC FRACTURING TREATMENT SHALL PROVIDE DIRECTLY TO  A
HEALTH  CARE  PROFESSIONAL,  IMMEDIATELY  IN  REQUEST,  ALL  INFORMATION
REQUIRED BY THE HEALTH  CARE  PROFESSIONAL,  INCLUDING  THE  PERCENT  BY
VOLUME  OF  THE  CHEMICAL CONSTITUENTS OF THE HYDRAULIC FRACTURING FLUID
AND THEIR ASSOCIATED CAS NUMBERS. IN A CASE THAT IS NOT A MEDICAL  EMER-
GENCY,  THE  HEALTH CARE PROFESSIONAL SHALL PROVIDE THE OPERATOR AND THE
PERSON OR ENTITY PERFORMING THE HYDRAULIC FRACTURING TREATMENT A WRITTEN
STATEMENT OF NEED FOR THE INFORMATION BEFORE  THE  HEALTH  CARE  PROFES-
SIONAL  IS  ENTITLED TO RECEIVE THE INFORMATION. IN A MEDICAL EMERGENCY,
THE HEALTH CARE PROFESSIONAL SHALL PROVIDE THE OPERATOR AND  THE  PERSON
OR ENTITY PERFORMING THE HYDRAULIC FRACTURING TREATMENT A WRITTEN STATE-
MENT OF NEED FOR THE INFORMATION AS SOON AS CIRCUMSTANCES PERMIT.
  5.  A HEALTH CARE PROFESSIONAL TO WHOM INFORMATION IS DISCLOSED PURSU-
ANT TO SUBDIVISION FOUR OF  THIS  SECTION  SHALL  HOLD  THE  INFORMATION
CONFIDENTIAL, EXCEPT THAT THE HEALTH CARE PROFESSIONAL MAY, FOR DIAGNOS-
TIC  OR  TREATMENT PURPOSES, DISCLOSE SUCH INFORMATION TO ANOTHER HEALTH
CARE PROFESSIONAL, A LABORATORY OR A THIRD-PARTY TESTING FIRM. A  HEALTH
CARE  PROFESSIONAL,  LABORATORY  OR  THIRD-PARTY  TESTING  FIRM TO WHICH
INFORMATION IS DISCLOSED BY ANOTHER HEALTH CARE PROFESSIONAL SHALL  HOLD
SUCH INFORMATION CONFIDENTIAL.
S 23-1507. OPERATOR DISCLOSURES.

S. 5879--A                          4

  1.  FOLLOWING  THE COMPLETION OF A HYDRAULIC FRACTURING TREATMENT ON A
WELL, THE OPERATOR SHALL INCLUDE IN THE WELL  COMPLETION  REPORT,  ON  A
FORM APPROVED BY THE DEPARTMENT:
  A.  THE MAXIMUM PUMP PRESSURE MEASURED AT THE SURFACE AND THE TYPE AND
VOLUME OF BASE FLUID USED IN EACH  STAGE  OF  THE  HYDRAULIC  FRACTURING
TREATMENT;
  B. A LIST OF ALL ADDITIVES USED IN THE HYDRAULIC FRACTURING TREATMENT,
SPECIFIED  BY  GENERAL  TYPE,  SUCH AS ACID, BIOCIDE, BREAKER, CORROSION
INHIBITOR,  CROSSLINKER,  DEMULSIFIER,  FRICTION  REDUCER,   GEL,   IRON
CONTROL, OXYGEN SCAVENGER, PH ADJUSTING AGENT, PROPPANT, SCALE INHIBITOR
AND SURFACTANT;
  C.  FOR  EACH  ADDITIVE TYPE LISTED UNDER PARAGRAPH B OF THIS SUBDIVI-
SION, THE SPECIFIC NAME OF THE ADDITIVE USED  AND  THE  ACTUAL  RATE  OR
CONCENTRATION OF EACH ADDITIVE, EXPRESSED AS POUNDS PER THOUSAND GALLONS
OR  GALLONS PER THOUSAND GALLONS AND EXPRESSED AS A PERCENTAGE BY VOLUME
OF THE TOTAL HYDRAULIC FRACTURING FLUID USED;
  D. THE INFORMATION PROVIDED PURSUANT TO SUBDIVISION THREE  OF  SECTION
23-1505  OF  THIS  TITLE  TO  THE  OPERATOR  BY THE PERSON OR ENTITY WHO
PERFORMED THE HYDRAULIC FRACTURING TREATMENT; AND
  E. IF THE OPERATOR CAUSED ANY ADDITIVES TO BE USED DURING THE  HYDRAU-
LIC  FRACTURING TREATMENT THAT ARE NOT REQUIRED TO BE DISCLOSED PURSUANT
TO SUBDIVISION THREE OF SECTION 23-1505 OF THIS TITLE TO THE OPERATOR BY
THE PERSON OR ENTITY WHO PERFORMED THE HYDRAULIC FRACTURING TREATMENT:
  (1) A LIST OF THE ADDITIVES USED; AND
  (2) FOR EACH ADDITIVE LISTED, THE CHEMICAL CONSTITUENTS OF  THE  ADDI-
TIVE  AND  THEIR  ASSOCIATED  CAS NUMBERS AND THE ACTUAL RATE OR CONCEN-
TRATION OF EACH ADDITIVE OR CHEMICAL, EXPRESSED IN THE  MANNER  PROVIDED
PURSUANT TO SUBDIVISION THREE OF SECTION 23-1505 OF THIS TITLE.
  2.  THE  OPERATOR  MAY SUPPLY FIELD SERVICE COMPANY TICKETS, EXCLUDING
PRICING INFORMATION, AND  REPORTS  REGARDING  THE  HYDRAULIC  FRACTURING
TREATMENT,  AS USED IN THE NORMAL COURSE OF BUSINESS, TO SATISFY SOME OR
ALL OF THE REQUIREMENTS OF SUBDIVISION ONE OF THIS SECTION.
  3. NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH E OF SUBDIVISION ONE OF
THIS SECTION,  IF  THE  SPECIFIC  IDENTITY  OF  A  CHEMICAL  CONSTITUENT
CONTAINED  IN  AN  ADDITIVE IS ENTITLED TO BE WITHHELD AS A TRADE SECRET
PURSUANT TO THE CRITERIA PROVIDED BY 42 U.S.C  SECTION  11042(A)(2)  AND
SECTION  23-1511  OF  THIS TITLE, THE DEPARTMENT  SHALL PROTECT AND HOLD
CONFIDENTIAL THE IDENTITY OF THE CHEMICAL CONSTITUENT AND ITS ASSOCIATED
CAS NUMBER. TO QUALIFY FOR TRADE SECRET PROTECTION, THE  OPERATOR  SHALL
SUBMIT  TO THE DEPARTMENT ON AN APPROVED FORM A FORMAL CLAIM OF ENTITLE-
MENT TO THAT PROTECTION IN THE MANNER REQUIRED  BY  SECTION  23-1511  OF
THIS TITLE.
  4.  THE  PROVISIONS  OF SUBDIVISION THREE OF THIS SECTION SHALL NOT BE
DEEMED TO AUTHORIZE AN OPERATOR TO WITHHOLD INFORMATION THAT FEDERAL  OR
STATE LAW, INCLUDING THIS SECTION, REQUIRES TO BE PROVIDED TO ANY HEALTH
CARE  PROFESSIONAL WHO NEEDS THE INFORMATION FOR DIAGNOSTIC OR TREATMENT
PROPOSES. AN OPERATOR SHALL PROVIDE DIRECTLY TO A HEALTH   CARE  PROFES-
SIONAL,  IMMEDIATELY  ON REQUEST, ALL INFORMATION REQUIRED BY THE HEALTH
CARE PROFESSIONAL, INCLUDING THE  PERCENT  BY  VOLUME  OF  THE  CHEMICAL
CONSTITUENTS  OF THE HYDRAULIC FRACTURING FLUID AND THEIR ASSOCIATED CAS
NUMBERS. IN A CASE THAT IS NOT A  MEDICAL  EMERGENCY,  THE  HEALTH  CARE
PROFESSIONAL  SHALL PROVIDE THE OPERATOR A WRITTEN STATEMENT OF NEED FOR
THE INFORMATION BEFORE THE PERSON IS ENTITLED TO  RECEIVE  THE  INFORMA-
TION. IN A MEDICAL EMERGENCY, THE HEALTH CARE PROFESSIONAL SHALL PROVIDE
THE  OPERATOR A WRITTEN STATEMENT OF NEED FOR THE INFORMATION AS SOON AS
CIRCUMSTANCES PERMIT.

S. 5879--A                          5

  5. A HEALTH CARE PROFESSIONAL TO WHOM INFORMATION IS DISCLOSED  PURSU-
ANT  TO  SUBDIVISION  FOUR  OF  THIS  SECTION SHALL HOLD THE INFORMATION
CONFIDENTIAL, EXCEPT THAT THE HEALTH CARE PROFESSIONAL MAY, FOR DIAGNOS-
TIC OR TREATMENT PROPOSES, DISCLOSE SUCH INFORMATION TO  ANOTHER  HEALTH
CARE  PROFESSIONAL, A LABORATORY OR A THIRD-PARTY TESTING FIRM. A HEALTH
CARE PROFESSIONAL, LABORATORY OR THIRD-PARTY TESTING FIRM TO WHICH  SUCH
INFORMATION  IS DISCLOSED BY ANOTHER HEALTH CARE PROFESSIONAL SHALL HOLD
THE INFORMATION CONFIDENTIAL.
S 23-1509. USE OF SERVICES OF NONCOMPLYING SERVICE COMPANY PROHIBITED.
  AN OPERATOR SHALL NOT USE THE SERVICES OF ANOTHER PERSON OR ENTITY  IN
PERFORMING  A  HYDRAULIC  FRACTURING  TREATMENT IN THIS STATE UNLESS THE
OTHER PERSON OR ENTITY IS IN COMPLIANCE WITH THE REQUIREMENTS OF SECTION
23-1505 OF THIS TITLE.
S 23-1511. TRADE SECRET PROTECTION.
  1. A CLAIM OF ENTITLEMENT TO TRADE SECRET PROTECTION PURSUANT TO  THIS
TITLE  SHALL INCLUDE SUBSTANTIATING FACTS IN THE FORM OF THE INFORMATION
REQUIRED BY 40 C.F.R. SECTION 350.7(A). IF REQUESTED BY THE TRADE SECRET
CLAIMANT, THE DEPARTMENT SHALL TREAT ANY SUCH  SUBSTANTIATING  FACTS  AS
CONFIDENTIAL  AND  SHALL  NOT  DISCLOSE  THEM  TO ANY THIRD PARTY OR THE
PUBLIC FOR ANY PURPOSE. UNTIL A FINAL DETERMINATION THAT THE INFORMATION
IS NOT ENTITLED TO TRADE SECRET PROTECTION IS MADE UNDER  THIS  SECTION,
THE  DEPARTMENT  SHALL  TREAT THE INFORMATION IMPLICATED BY THE CLAIM OF
TRADE SECRET ENTITLEMENT AS A CONFIDENTIAL TRADE SECRET, AND THE  INFOR-
MATION  IS  NOT  SUBJECT  TO  DISCLOSURE  PURSUANT TO ARTICLE SIX OF THE
PUBLIC OFFICERS LAW.
  2. THE COMMISSION SHALL DETERMINE A  CLAIM  OF  ENTITLEMENT  TO  TRADE
SECRET  PROTECTION  MADE  PURSUANT TO THIS TITLE TO BE SUFFICIENT IF THE
INFORMATION SET FORTH IN THE CLAIM  SUPPORTS  ALL  THE  CONCLUSIONS  SET
FORTH  IN  40 C.F.R. SECTION 350.13(A) AND THE SUPPORTING INFORMATION IS
TRUE. IN MAKING A DETERMINATION  AS  TO  A  CLAIM,  THE  DEPARTMENT  MAY
REQUIRE  THE  TRADE  SECRET  CLAIMANT  TO SUBMIT ADDITIONAL SUPPLEMENTAL
INFORMATION IF THE INFORMATION IS NECESSARY FOR THE DEPARTMENT  TO  MAKE
ITS  DETERMINATION  UNDER THIS SECTION. IF REQUESTED BY THE TRADE SECRET
CLAIMANT,  THE  DEPARTMENT  SHALL  TREAT  ANY  SUPPLEMENTAL  INFORMATION
PROVIDED  AS  CONFIDENTIAL  AND  MAY NOT DISCLOSE THE INFORMATION TO ANY
THIRD PARTY OR THE PUBLIC FOR ANY PURPOSE.
  3. IF THE DEPARTMENT DETERMINES A CLAIM OF ENTITLEMENT TO TRADE SECRET
PROTECTION TO BE INSUFFICIENT, THE DEPARTMENT  SHALL  NOTIFY  THE  TRADE
SECRET  CLAIMANT  IN WRITING OF THE DETERMINATION BY CERTIFIED MAIL. NOT
LATER THAN THE FIFTEENTH DAY AFTER THE DATE THE  TRADE  SECRET  CLAIMANT
RECEIVES  NOTICE  OF THE DETERMINATION, THE CLAIMANT MAY REQUEST ANOTHER
REVIEW OF THE CLAIM. THE TRADE SECRET CLAIMANT MUST SHOW GOOD CAUSE  FOR
THE  ADDITIONAL REVIEW. WHAT CONSTITUTES GOOD CAUSE FOR PURPOSES OF THIS
SUBDIVISION IS SOLELY WITHIN THE REASONABLE DISCRETION OF THE DEPARTMENT
AND MAY INCLUDE THE AVAILABILITY OF NEW SUPPORTING INFORMATION OR A GOOD
FAITH ERROR OR OMISSION ON THE PART OF THE TRADE SECRET CLAIMANT IN  THE
ORIGINAL  CLAIM.  NOT  LATER  THAN  THE THIRTIETH DAY AFTER THE DATE THE
DEPARTMENT RECEIVES THE REQUEST, THE DEPARTMENT  SHALL  PROVIDE  WRITTEN
NOTICE  TO  THE  TRADE SECRET CLAIMANT OF THE DEPARTMENT'S ACCEPTANCE OR
REJECTION OF THE REQUEST. IF A TRADE SECRET CLAIMANT MAKES A REQUEST FOR
REVIEW UNDER THIS SUBDIVISION, THE DEPARTMENT SHALL TREAT  THE  INFORMA-
TION  IMPLICATED BY THE CLAIM OF TRADE SECRET ENTITLEMENT AS A CONFIDEN-
TIAL TRADE SECRET UNTIL THE DEPARTMENT MAKES A DETERMINATION WITH REGARD
TO THE REVIEW REQUEST. IF THE DEPARTMENT REJECTS THE REVIEW REQUEST, THE
DEPARTMENT SHALL CONTINUE TO TREAT THE  INFORMATION  AS  A  CONFIDENTIAL
TRADE  SECRET  UNTIL THE EARLIER OF THE THIRTIETH DAY AFTER THE DATE THE

S. 5879--A                          6

TRADE SECRET CLAIMANT RECEIVES NOTICE THAT THE DEPARTMENT  HAS  REJECTED
THE  REVIEW  REQUEST  OR  THE DATE THE CLAIMANT WITHDRAWS THE DISCLOSURE
PURSUANT TO SUBDIVISION FIVE OF THIS SECTION.
  4.  NOT  LATER  THAN THE THIRTIETH DAY AFTER THE DATE THE TRADE SECRET
CLAIMANT RECEIVES NOTICE FROM THE DEPARTMENT  THAT  THE  DEPARTMENT  HAS
REJECTED THE CLAIM OF ENTITLEMENT TO TRADE SECRET PROTECTION, THE CLAIM-
ANT  MAY  COMMENCE  AN  ACTION  PURSUANT TO ARTICLE SEVENTY-EIGHT OF THE
CIVIL PRACTICE LAW AND RULES. IF A TRADE SECRET CLAIMANT COMMENCES  SUCH
AN  ACTION, THE DEPARTMENT SHALL TREAT THE INFORMATION IMPLICATED BY THE
CLAIM OF TRADE SECRET ENTITLEMENT AS A CONFIDENTIAL TRADE  SECRET  UNTIL
SUCH  ACTION AND ALL APPEALS THEREOF ARE RESOLVED. IF THE ACTION AFFIRMS
THE DEPARTMENT'S DETERMINATION OF THE INSUFFICIENCY OF  THE  CLAIM,  THE
DEPARTMENT  SHALL  CONTINUE  TO  TREAT THE INFORMATION AS A CONFIDENTIAL
TRADE SECRET UNTIL THE EARLIER OF THE THIRTIETH DAY AFTER THE  DATE  THE
TRADE  SECRET CLAIMANT RECEIVES NOTICE THAT THE ACTION HAS BEEN RESOLVED
OR THE DATE THE CLAIMANT WITHDRAWS THE DISCLOSURE PURSUANT  TO  SUBDIVI-
SION FIVE OF THIS SECTION.
  5.  NOT  LATER  THAN THE THIRTIETH DAY AFTER THE DATE THE TRADE SECRET
CLAIMANT RECEIVES NOTIFICATION THAT  THE  DEPARTMENT  HAS  REJECTED  THE
CLAIM  OF  ENTITLEMENT  TO  TRADE  SECRET PROTECTION OR THE DATE A FINAL
JUDGMENT AFFIRMING THE DEPARTMENT'S DETERMINATION OF  THE  INSUFFICIENCY
OF  THE CLAIM IS ENTERED, AS APPLICABLE, AND ONLY TO THE EXTENT THAT THE
RELEVANT CHEMICAL CONSTITUENT HAS NOT BEEN USED  BY  OR  FOR  THE  TRADE
SECRET CLAIMANT IN ANY HYDRAULIC FRACTURING TREATMENT IN THIS STATE, THE
TRADE SECRET CLAIMANT MAY FORMALLY WITHDRAW THE DISCLOSURE OF A CHEMICAL
CONSTITUENT  BY  NOTIFYING  THE DEPARTMENT OF ITS INTENT TO WITHDRAW THE
DISCLOSURE. IF THE TRADE SECRET CLAIMANT WITHDRAWS THE DISCLOSURE  OF  A
CHEMICAL CONSTITUENT, THE DEPARTMENT SHALL PROTECT AND HOLD CONFIDENTIAL
THE  IDENTITY  OF  THE  CHEMICAL  CONSTITUENT  AND ANY CORRESPONDING CAS
NUMBER, AND THE INFORMATION IS NOT SUBJECT  TO  DISCLOSURE  PURSUANT  TO
ARTICLE SIX OF THE PUBLIC OFFICERS LAW. AFTER THE WITHDRAWAL, THE CHEMI-
CAL CONSTITUENT SHALL NOT BE USED BY OR FOR THE TRADE SECRET CLAIMANT IN
ANY HYDRAULIC FRACTURING TREATMENT IN THIS STATE UNLESS THE TRADE SECRET
CLAIMANT  SATISFIES  THE  REQUIREMENTS  OF  THIS  TITLE  RELATING TO THE
DISCLOSURE OF INFORMATION REGARDING THE CHEMICAL CONSTITUENT.
  6. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE DEPARTMENT
MAY:
  A. DISCLOSE INFORMATION OTHERWISE SUBJECT TO TRADE  SECRET  PROTECTION
UNDER  THIS SECTION TO A THIRD-PARTY TESTING FIRM IN CONNECTION WITH THE
INVESTIGATION OF A CLAIM OF CONTAMINATION OF SURFACE WATER OR  GROUNDWA-
TER  IF THE FIRM AGREES IN WRITING TO KEEP THE INFORMATION CONFIDENTIAL;
AND
  B. USE THE RESULTS OF A TEST CONDUCTED BY A THIRD-PARTY  TESTING  FIRM
IN  CONNECTION  WITH  AN  INVESTIGATION DESCRIBED IN PARAGRAPH A OF THIS
SUBDIVISION IN ANY MANNER THE DEPARTMENT CONSIDERS NECESSARY TO  PROTECT
PUBLIC HEALTH AND THE ENVIRONMENT.
                                TITLE 16
                   REGULATION OF HYDRAULIC FRACTURING
SECTION 23-1601. DEFINITIONS.
        23-1603. CONCESSION OF LIABILITY.
        23-1605. AGREEMENTS WITH REAL PROPERTY OWNERS.
        23-1607. DAMAGES.
S 23-1601. DEFINITIONS.
  AS USED IN THIS TITLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:

S. 5879--A                          7

  1.  "HYDRAULIC FRACTURING" MEANS THE USE OF CHEMICALS, WATER AND OTHER
SUBSTANCES INJECTED OR PUMPED INTO A NATURAL GAS WELL TO  STIMULATE  THE
EXTRACTION OF NATURAL GAS.
  2.  "PRODUCER"  MEANS ANY INDIVIDUAL OR ENTITY ENGAGED IN THE DRILLING
FOR OR EXTRACTION OF NATURAL GAS THROUGH THE  UTILIZATION  OF  HYDRAULIC
FRACTURING.
S 23-1603. CONCESSION OF LIABILITY.
  1.  EVERY  PRODUCER,  PRIOR TO THE ISSUANCE OF ANY PERMIT, PURSUANT TO
THIS ARTICLE, TO ENGAGE  IN  HYDRAULIC  FRACTURING,  SHALL  EXECUTE  AND
DELIVER  TO  THE  DEPARTMENT A CONCESSION OF LIABILITY AND WAIVER OF ALL
DEFENSES ARISING OUT  OF  ANY  CAUSE  OF  ACTION  RELATED  TO  PROPERTY,
PERSONAL  AND  WRONGFUL  DEATH  DAMAGES  ALLEGED  TO HAVE BEEN CAUSED BY
HYDRAULIC FRACTURING CONDUCTED BY SUCH  PRODUCER.  SUCH  CONCESSION  AND
WAIVER  SHALL BE EXECUTED IN SUCH FORM AND MANNER AS SHALL BE DETERMINED
BY THE ATTORNEY GENERAL, AND SHALL PROVIDE FOR STRICT LIABILITY  TO  THE
PEOPLE  OF  THE  STATE OF NEW YORK AND EVERY PERSON WITHIN THE STATE FOR
ANY AND ALL DAMAGES ARISING FROM THE CONDUCTING OF HYDRAULIC  FRACTURING
WITHIN THIS STATE.
  2. EVERY PRODUCER WHICH ENTERS INTO AN AGREEMENT WITH AN OWNER OF REAL
PROPERTY  IN THIS   STATE WHICH PROVIDES FOR THE LEASE, LICENSE OR GRANT
OF AUTHORITY TO CONDUCT HYDRAULIC FRACTURING UPON  SUCH  REAL  PROPERTY,
SHALL    INCLUDE A COPY OF ITS CONCESSION OF LIABILITY EXECUTED PURSUANT
TO SUBDIVISION ONE OF THIS SECTION AND A SIMILAR CONCESSION OF LIABILITY
EXECUTED IN FAVOR OF THE REAL PROPERTY OWNER. SUCH CONCESSION OF LIABIL-
ITY IN FAVOR OF A REAL PROPERTY OWNER SHALL BE IN SUCH FORM AS SHALL  BE
DETERMINED BY THE ATTORNEY GENERAL.
S 23-1605. AGREEMENTS WITH REAL PROPERTY OWNERS.
  1.  NO  AGREEMENT  FOR  THE  LEASE,  LICENSE  OR GRANT OF AUTHORITY TO
CONDUCT HYDRAULIC FRACTURING UPON REAL PROPERTY IN THIS STATE, SHALL  BE
EXECUTED  UNTIL  THREE  INDEPENDENT APPRAISALS OF THE VALUE OF SUCH REAL
PROPERTY HAVE BEEN CONDUCTED. SUCH APPRAISALS SHALL BE CONDUCTED AT  THE
EXPENSE  OF  THE  PRODUCER  BY  APPRAISERS SELECTED BY THE REAL PROPERTY
OWNER. UPON COMPLETION OF SUCH APPRAISALS A COPY OF EACH APPRAISAL SHALL
BE PROVIDED TO THE REAL PROPERTY OWNER, THE PRODUCER AND THE DEPARTMENT,
AND SHALL BE ATTACHED TO EVERY AGREEMENT PROVIDING FOR  HYDRAULIC  FRAC-
TURING UPON SUCH REAL PROPERTY.
  2.  NO  AGREEMENT  FOR  THE  LEASE,  LICENSE  OR GRANT OF AUTHORITY TO
CONDUCT HYDRAULIC FRACTURING UPON REAL PROPERTY IN THIS STATE, SHALL  BE
EXECUTED  UNTIL  THE  DEPARTMENT  SHALL  HAVE  CONDUCTED  WATER AND SOIL
CONTAMINATION TESTING UPON  SUCH  REAL  PROPERTY  FOR  THE  PRESENCE  OF
HYDRAULIC  FRACTURING  FLUIDS.  A  REPORT OF THE RESULTS OF SUCH TESTING
SHALL BE PROVIDED TO BOTH THE REAL PROPERTY OWNER AND THE PRODUCER.
  3. EACH PRODUCER SHALL INCLUDE IN EVERY AGREEMENT IT ENTERS INTO  WITH
THE OWNER OF REAL PROPERTY IN THIS STATE FOR THE LEASE, LICENSE OR GRANT
OF AUTHORITY TO CONDUCT HYDRAULIC FRACTURING UPON SUCH REAL PROPERTY:
  A.  A STATEMENT OF THE FINANCIAL, HEALTH AND ENVIRONMENTAL RISKS POSED
BY OR POTENTIALLY POSED BY CONDUCT OF HYDRAULIC FRACTURING. SUCH  STATE-
MENT  SHALL BE JOINTLY DEVELOPED AND PERIODICALLY UPDATED BY THE COMMIS-
SIONER, THE ATTORNEY GENERAL AND THE COMMISSIONER OF HEALTH;
  B. A STATEMENT OF THE RISKS OF GROUND SOIL AND  GROUND  WATER  CONTAM-
INATION  POSED BY OR POTENTIALLY POSED BY THE CONDUCT OF HYDRAULIC FRAC-
TURING;
  C. A STATEMENT OF THE HEALTH RISKS POSED  BY  SPILLS  OF  AND  CONTAM-
INATION BY HYDRAULIC FRACTURING FLUIDS; AND

S. 5879--A                          8

  D.  A  STATEMENT  OF  THE  PRODUCER'S STRICT LIABILITY FOR ANY AND ALL
DAMAGES RESULTING FROM THE CONDUCTING OF HYDRAULIC FRACTURING,  AND  THE
DAMAGES THAT WILL BE AWARDED THEREFOR PURSUANT TO THIS TITLE.
S 23-1607. DAMAGES.
  1.  NOTWITHSTANDING  ANY  OTHER PROVISION OF LAW TO THE CONTRARY, UPON
THE CONTAMINATION OF GROUND SOIL AND/OR GROUND WATER  BY  ANY  PRODUCER,
SUCH PRODUCER SHALL BE LIABLE FOR THE FOLLOWING DAMAGES:
  A. TO THE AFFECTED REAL PROPERTY OWNER, AN AMOUNT EQUAL TO ONE HUNDRED
FIFTY  PERCENT  OF  THE  REAL  PROPERTY VALUE, AS DETERMINED PURSUANT TO
SUBDIVISION ONE OF SECTION 23-1605 OF THIS TITLE, AND THE FULL  COST  OF
REMEDIATING THE CONTAMINATED GROUND SOIL AND GROUND WATER; AND
  B.  TO  ANY  PERSON AFFECTED BY SUCH CONTAMINATION, AN AMOUNT EQUAL TO
THE COST OF THE  DIAGNOSIS,  TREATMENT,  MONITORING  AND  CARE  OF  SUCH
PERSON,  FOR  LIFE,  RELATED  TO ANY DISEASE OR CONDITION ARISING OUT OF
SUCH CONTAMINATION.
  2. UNDER NO CIRCUMSTANCES SHALL ANY AMOUNT OF DAMAGES AWARDED OR  PAID
PURSUANT TO THIS SECTION BE DEEMED TO BE INCOME TO ANY PERSON.  ALL SUCH
DAMAGES  SHALL  BE  REIMBURSEMENT  FOR  LOSSES  ACTUALLY INCURRED BY THE
RECIPIENT THEREOF.
  S 2. Subdivision 9 of section 8-0109 of the environmental conservation
law, as added by chapter 219 of the laws of 1990, is amended to read  as
follows:
  9.  An environmental impact statement shall be prepared for any action
found to have a significant impact on the special groundwater protection
area, as defined in section 55-0107 of this chapter OR FOR  ANY  NATURAL
GAS  OR  OIL  DRILLING  INVOLVING THE USE OF HYDRAULIC FRACTURING FLUID.
Such statement shall meet the requirements of the most detailed environ-
mental impact statement required by this section or by any such rule  or
regulation promulgated pursuant to this section.
  S  3.  Subdivision 2 of section 23-0303 of the environmental conserva-
tion law is REPEALED and a  new  subdivision  2  is  added  to  read  as
follows:
  2.  FOR  THE  PURPOSES STATED HEREIN, THIS SECTION SHALL SUPERSEDE ALL
OTHER STATE AND LOCAL LAWS RELATING TO THE OIL, GAS AND SOLUTION  MINING
INDUSTRIES;  PROVIDED,  HOWEVER,  THAT  NOTHING IN THIS SECTION SHALL BE
CONSTRUED TO PREVENT ANY LOCAL GOVERNMENT FROM:
  A. ENACTING OR ENFORCING LOCAL LAWS OR ORDINANCES OF GENERAL  APPLICA-
BILITY,  EXCEPT  THAT  SUCH  LOCAL LAWS OR ORDINANCES SHALL NOT REGULATE
OIL, GAS AND SOLUTION MINING REGULATED BY STATE STATUTE,  REGULATION  OR
PERMIT; OR
  B.  ENACTING OR ENFORCING LOCAL ZONING ORDINANCES OR LAWS WHICH DETER-
MINE PERMISSIBLE USES IN ZONING DISTRICTS. WHERE OIL, GAS  AND  SOLUTION
MINING  IS DESIGNATED A PERMISSIBLE USE IN A ZONING DISTRICT AND ALLOWED
BY SPECIAL USE PERMIT, CONDITIONS PLACED ON  SUCH  SPECIAL  USE  PERMITS
SHALL BE LIMITED TO THE FOLLOWING:
  (I) INGRESS AND EGRESS TO PUBLIC THOROUGHFARES CONTROLLED BY THE LOCAL
GOVERNMENT;
  (II)  ROUTING  OF  DRILLING AND DRILLING-RELATED TRANSPORT VEHICLES ON
ROADS CONTROLLED BY THE LOCAL GOVERNMENT;
  (III) REQUIREMENTS AND CONDITIONS AS SPECIFIED IN THE PERMIT ISSUED BY
THE DEPARTMENT CONCERNING SETBACK FROM PROPERTY  BOUNDARIES  AND  PUBLIC
THOROUGHFARE  RIGHTS-OF-WAY,  NATURAL  OR  MAN-MADE BARRIERS TO RESTRICT
ACCESS, IF REQUIRED, DUST CONTROL AND HOURS OF OPERATION; AND
  (IV) CONFORMANCE TO ROAD CONSTRUCTION STANDARDS AS  MAY  BE  OTHERWISE
PROVIDED FOR BY LOCAL LAW; OR

S. 5879--A                          9

  C.  ENACTING OR ENFORCING LOCAL LAWS OR ORDINANCES REGULATING OIL, GAS
AND SOLUTION MINING NOT REQUIRED TO BE PERMITTED BY THE STATE.
  S  4.  This act shall take effect on the first of June next succeeding
the date on which it  shall  have  become  a  law;  provided,  that  the
provisions  of  title 16 of article 23 of the environmental conservation
law, as added by section one of this act, shall apply  to  every  lease,
license  and grant of authority to conduct hydraulic fracturing which is
in effect on or after such effective date; and provided,  further  that,
effective immediately, any actions necessary to implement the provisions
of  this  act  on  its  effective date are authorized and directed to be
completed on or before such date.

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