The full significance of last week’s announcement by DEC Commissioner Martens about the decision of the agency to ask the Commissioner of Health to review the SGEIS’s assessment of the impacts of fracking on human health may have eluded most of us. But, not blogger and author Tom Wilber. Wilber, a former Gannett reporter from the Southern Tier, has an excellent blog, Shale Gas Review, as well as one of the best books on the Marcellus Shale saga, Under the Surface. His close and detailed following led him to wonder– and ask DEC spokesperson Emily DeSantis– whether or not DEC would meet an administrative law deadline for issuing its regulations governing HVHF. For those who may not remember, the DEC issued draft regulations at the same time that they issued the dSGEIS, and held public hearings where they took comments on both documents at the same time. There is no timeline stipulated by law for the completion of the SGEIS, but there is a deadline by which the agency must issue final regulations, or else begin the process of proposing regulations, and holding hearings for the public to comment, over again.
This is a very significant change, and Wilber is to be commended for figuring this out, and breaking the news. Here is a quoted section from his blog post, but you really should go read the whole thing.
New York officials crafting policy to regulate shale gas drilling amid unanswered health concerns will likely re-open the process to public hearings, essentially guaranteeing more momentum for the movement that has effectively stalled the industry’s advancement into the Empire State for more than four years.
Emily DeSantis, a spokeswoman for the Department of Environmental Conservation, said late this afternoon that agency officials expect to begin a new rulemaking process rather than try to meet a Nov. 29 deadline to complete a regulatory overhaul. The news comes a week after DEC Commissioner Joseph Martens announced that the agency will turn part of the review over to the Department of Health Commissioner Nirav Shah to address persistent questions about how shale gas development and high volume hydraulic fracturing will affect public health in communities where it is allowed.
“Given that DEC has said no regulations or final decision will be issued until the completion of Dr. Shah’s review, should high-volume hydraulic fracturing move forward, it is expected that a new rulemaking process would be undertaken,” DEC spokeswoman Emily DeSantis said. That process would include at least one public hearing although DeSantis said no timeframes had been made.
DeSantis was responding to my question about whether the DEC would meet a deadline of Nov. 29 to issue policy that would allow permitting to begin. The deadline, outlined in the State Administrative Procedures Act, mandates that new rules must be finalized within 365 days after the final public hearing, or the state must file for an extension.
In the way of analysis, I would add that the relationship between these moves on the part of the administration follow some hints given by Governor Cuomo recently. Like a good novelist, Cuomo practices some foreshadowing in his administration’s rolling out of a story. In recent weeks, Cuomo has referred to the probability of litigation, as did Commissioner Martens in last week’s announcement. These statements followed closely on the heels of the announcement by Kate Sinding of the National Resources Defense Council that a Community Fracking Defense Project was being initiated to offer local communities in 5 states, including NY, legal assistance.
Apparently, as this has become a potential source of national-level litigation, the Cuomo administration has decided to take the time to proceed carefully.