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Issues for Local Government and
Community Consideration
April 2012
Cheaper Fuel
Jobs and Training
Income for Landowners
Greener than Oil and Coal
Revenue for Local Communities and New York State
Reduced Reliance on Imported Oil/National Security Implications
Impacts on Water, Public Health and Safety
Infrastructure Maintenance Costs
Financial Impacts and Burdens
Character of the Community
Advocacy and Actions
Quality of Life
Marcellus Shale
• Finger Lakes
• Southern Tier
• Current focus
Utica Shale
• Albany to Buffalo
• Includes Monroe
• Future interest
• Depends upon the
price of natural gas
and the cost of
deeper drilling
Hydrofracking is a water-based process used
by gas companies to extract natural gas
trapped in shale formations.
Shale is a fine-grained sedimentary rock
formed from the compaction of silt and claysize mineral particles we commonly call
“mud”. Shale (“mudstones”) has many
layers and splits readily into thin pieces.
Older method of drilling
vertical well shafts
Newer method for deep well
high pressure, high volume
horizontal drilling
in use for about a decade
Average Well Depth in the Marcellus Shale is 5,300 ft.
(more than 4 times the height of the Empire State Building)
Well Pad Construction Site
~ 4 to 10 wells/2.5 acre pad
~ 2 to 8 weeks to construct
~3 weeks to hydrofrack
High Volume Hydraulic
Fracturing (HVHF)
For deep shale deposits
Uses high pressure infusions of
 water
 sand
 chemical additives
Fractures the rock to allow
natural gas to flow
Water, sand, and chemicals = fracking fluid;
specific composition depends upon the
conditions of the specific well being fractured
Friction-reducing additives create “slickwater”
to allow the fracturing fluids to be pumped at a
higher rate and reduced pressure vs. plain water
Sand allows the fractures to remain open so the
gas can escape
Slickwater Ratio: 98% to 99.5% water, 0.5% to
2% additives (U.S. Department of Energy)
Some of the toxic and hazardous materials used in
hydrofracking are known carcinogens and/or can
cause other health problems in humans and animals,
e.g. kerosene, benzene, toluene, ethylbenzene, xylene,
and formaldehyde
Low level radioactive tracers may be used in the
Flowback (wastewater) may contain other toxic and
hazardous materials difficult to dispose of
 naturally occurring radioactive material (NORM)
 heavy metals and chlorides
Disclosure: gas companies withheld the
ingredients as proprietary information, but
governmental and public demands led to
From a public health perspective, posting the
contents of fracking fluid and flowback is
useful but insufficient.
Loopholes in federal law have excluded oil
and gas companies from regulation of toxic
and hazardous material.
Injects propane gel under high pressure into shale
instead of water
Uses 90% propane and a diester phosphoric acid
gelling agent for viscosity to carry chemicals and sands
Propane gasifies and returns to the surface during the
process, leaving the chemicals behind
Recovered propane is sold or reused; propane is more
expensive initially, though it can be resold.
inside climate news: GasFrac
No empirical analysis or scientific study yet
Liquid propane is highly combustible
Requires large quantities of additional but
different chemicals, currently unknown
Potential problems with migration of
methane and other chemicals into
Heavy industrial compressors may be needed on
site to re-condense returned propane for reuse
initially; may contribute to air pollution
Uses about one quarter the number of truck trips
of water-based fracking, thus less impacts on
roads, neighbors, and company costs
Propane is more expensive initially, though it can
be resold
Landowner group has an agreement with gas drillers
Is it included under the current state moratorium?
Chevron tested this process—says it has economic
and environmental performance potential
Initially the LPG method can cost 20-40% more than
water fracking, but this doesn’t include ongoing costs
for HVHF water handling and disposal
Further testing and study are needed. Will a
NYSDEC environmental study be required?
NY has a source of propane via a pipeline that runs
from Pennsylvania through the heart of the Marcellus
Shale in the Southern Tier en route to New England
From the perspective of gas
companies, the HVHF method
has economic benefits, i.e. fewer
wells are needed to access
trapped natural gas; however,
significant community concerns
about negative environmental
and health impacts exist.
Accidents and aging of sites happen.
What mitigations will matter?
How will on-site accidents and aging wells
impact groundwater and aquifers, surface
water resources, public water systems and
private well water?
What about air quality from burn-off during
the process, e.g. methane, and evaporation
from on-site flowback storage ponds?
The experience of other states is informative.
Shery Vargson, Granville, PA, since June 2010
Marcellus Shale Gas Development
Presented by Chesapeake Energy
February 22, 2012, New York Association of Towns Meeting
Site preparation with zero discharge: berm and
decking material over 2/3 of the 2.5 acre pad
Pre-drilling water testing to 4000 ft.
Closed-loop system for drilling
7 layers of cement and pipe casing
List of additive chemicals posted on site
“Flowback“ water: recycle, storage,
transportation, treatment, discharge
Safe work Practices: equipment built to
industry standards and routine inspections
Emergency Response Plan: use third party
contractor, train local first responders, 24 hour
emergency contact number, Incident
Command System used
Reclamation: restore site surface, fill well
with concrete
“Brownfield” and groundwater
contamination concerns not addressed
Drinking Water: This issue is not just about the
potential environmental, health and financial costs to
communities or the perceived economic and energy
benefits to individuals, our communities and the State
of New York; clean, safe drinking water is about
life itself.
Huge Volume of Water Needed for the Process:
1.5 to 5 million gallons/well (other estimates are
higher, e.g. 3 to 9 million gallons/well). Wells
may be fractured up to 18 times.
Pre-Drilling Testing of Public Water vs. Well
Waste Water Treatment Capability and Capacity
Seismic Activity: Infusion Wells for Disposal of
Waste Water (recent earthquakes in Ohio led to
new restrictions and regulations)
Recycling Waste Water: Reuse in Drilling and
Post Drilling Uses, e.g. brine for snow and ice
Disposal of drilling waste material in local
landfills? Will this create a “brownfield”
Hazardous Material: Type and Volume,
Public Notice (Ground Water Protection Council/Interstate
Oil and Gas Compact Commission website: www.fracfocus.org
now; site specific information on the New York State
Department of Environmental Conservation (NYSDEC) website
in the future: www.dec.ny.gov)
Impact on Human and Animal Health
Impact on Agriculture, e.g. the wine industry
Emergency Management and Local
Emergency Responder Training
Traffic Congestion, Safety and Control
Traffic Volume and Loaded Vehicular Weight
Approximately 500 one-way trips per well for all three phases of a
gas well—drilling, fracking, maintenance and disposal. With 3 to
10 wells/pad, total truck trips can run between 3,000 to 10,000.
Some trucks weigh as much as 80,000 to 100,000 lbs. when fully
loaded with water or sand
Capacity of Current Infrastructure
Road Construction and Maintenance
Consider Road Use and Preservation Laws
Cannot charge a fee for use of public roads, but can seek damages
Establish a baseline via an engineering evaluation
Consider Road Use Agreements/Contracts: voluntary negotiations
to address impacts to roads; not all gas companies will enter into
such agreements
De-icing Material
Hydrofracking Waste and Wastewater
Storage, Transportation, Treatment and
NORM (Naturally Occurring Radioactive
Material): Comes up in the flowback; NYSDEC
says more study is needed
Increased Public Costs for Infrastructure/Roads
and Bridges, Public Safety Services, Water,
Waste Water Treatment, Landfills, Public
Health Services
Voluntary Road Use Agreements
Some agreements provide for gas companies to construct new
roads to meet vehicle weight and trip frequency demands
Some agreements provide for repair of roads
Impact on Property Values for Homes with
Contaminated Wells/Drinking Water, and
Agricultural Industries Dependent upon
Clean Water
State Taxing Options and Status:
New York has no Severance Tax
Property Tax Implications
 Taxes Paid by Landowners
 Taxes or Other Payments by Gas and Drilling
 Tax Abatements and Exemptions from IDAs ?
 Compulsory Integration
14,000 active wells in NYS now, “income
approach” is the most applicable using a
discounted rate to convert projected income.
The economic unit includes everything except
the land.
For a copy of the presentation, visit
Compulsory Integration:
Relates to subsurface factors, NYSDEC
requires at least 60% control of property,
income/expense options for landowners with
and without leases, not a “taking”
For more information, visit
Residential mortgages contain a provision
prohibiting hazardous activity and the release
of hazardous substances. A residential
property owner may be in default by merely
entering into a drilling lease.
People who have signed oil and gas leases
may find it more difficult to borrow against
the property--for a second mortgage, to
refinance loans, or to purchase property that
is subject to a gas lease.
If a buyer cannot get a mortgage and the seller
cannot sell the property otherwise, then the
property value would likely decrease
significantly, impacting personal equity and
property tax revenues.
US Department of Agriculture: the rural loans
program may no longer finance homes with gas
leases, and the NYDOA is now considering
requiring an extensive environmental review
before issuing mortgages to people who have
leased their land for oil and gas drilling.
Low cost natural gas and gasoline in the USA
compared with much higher costs in Europe and Asia
US Department of Energy has approved exporting
natural gas to Europe and Asia via new pipelines to
terminals on the Gulf Coast and East Coast.
Companies outside of the USA are acquiring US
natural gas companies or shares of companies,
increasing international control of our natural gas
Domestic and foreign companies will extract our
natural gas and sell the product abroad at a higher
profit, but we won’t achieve the shift to greener
energy we seek in the USA.
An “all of the above” transition makes sense now
(if natural gas can be extracted safely), but
neither that nor “drill baby drill” are true energy
The USA needs to become more self reliant and
use clean, sustainable energy resources, e.g. solar
and wind, in the interest of our economy,
national security, and environmental safety and
NYS needs to have an energy policy as it relates
to taxation, subsidies, regulations, monitoring
and enforcement, local considerations, etc.
Trucks, buses, and other large vehicles have the
physical space to hold CNG tanks
Cars are already designed for CNG
No current distribution system exists in the
CNG fueling stations will need to be installed
across the country.
There is no national policy to facilitate this
Zoning Laws
Comprehensive Plans
Environmental Protection Overlay
Districts (EPODs)
Citizen Participation
NYSDEC Consideration During Permit
Application Reviews
Water Resources
Traffic Congestion
Local Jobs
Accommodations for Out-of-area
Training of Local Residents – Community
Colleges, other
Timeline for Construction of Drilling
Sites (about 4 to 6 weeks)
Site Maintenance
Percentage of Wells That Are
Lifespan of Wells (20-30 years), Closure,
and Mitigation Measures
NYS Supreme Court Decisions on Home
Rule vs. Preemption
Anschutz Exploration Corporation v. Town of
Cooperstown Holstein Corporation v. Town of
Both ruled in favor of municipal Home Rule, i.e. “…local governments
may exercise their powers to regulate land use to determine where
within their borders gas drilling may or may not take place, while
DEC regulates all technical operational matters on a consistent
statewide basis in locations where operations are permitted by law.”
NYS Attorney General v. US Government
Complaint: Army Corps of Engineers and other
federal agencies failed to commit to a full
environmental review of proposed regulations in
the Delaware River Basin.
Response: Delaware River Basin Commission is a
multi-state but not a federal agency and the EPA is
studying the possible impact of hydrofracking on
water quality.
Result: No court decision has been made at this
The draft Supplemental Generic Environmental Impact Statement
(dSGEIS) has many deficiencies, and the NYSDEC is currently
reviewing more than 61,000 comments. The draft SGEIS:
DOES NOT prohibit the use of toxic and carcinogenic
chemicals in the fracking process;
DOES NOT prohibit drilling in or around all aquifers
in order to protect everyone’s drinking water;
DOES NOT contain a health impact assessment;
DOES NOT have a comprehensive cumulative impact
analysis but, instead, only looks at impacts on a well
pad-by-well pad basis;
DOES NOT look at pipeline and compressor station
DOES NOT protect drinking water infrastructure;
DOES NOT close the hazardous waste loophole,
which allows hazardous fracking waste to be sent to
our ill-equipped sewage treatment plants and
municipal landfills;
DOES NOT prohibit spreading fracking wastes on
DOES NOT address the potential for seismic impacts;
DOES NOT consider mortgage lending impacts on
properties with drilling leases; and
DOES NOT respect local zoning (but NYS Supreme
Courts have ruled in favor of Home Rule for land use
Said propane fracking was “not mature enough” to
support drilling in New York; will review when
NYSDEC gets a proposal
Supplemental Generic Environmental Impact Statement
(SGEIS): following review of approximately 61,000
comments, the FGEIS (final statement) will be issued and
Findings made
NYSDEC regulates activity: high volume, horizontal drilling,
large well pads
Will apply to all such activity, including the Marcellus Shale
and Utica Shale
Concerns: well pads crowded with people, large amount of
water used, industrial activity; water contamination,
ecosystems and wildlife, air quality, greenhouse gas
emissions, naturally occurring radioactive material (NORM)
Will local governments be able to do their own environmental
review (EIS)? NO, but NYSDEC will include local input in
decision making on permits
Mitigation and conditions: Storm Water Regulations; Road Use
Agreements; pad setbacks; supplemental permit conditions; no
water contamination; not in flood plains, New York City and
Syracuse watersheds, state lands (local governments will decide
if they wish to allow leases local public lands)
Spreading of brine for snow and ice control can’t be done
without further study re: chemicals and NORM
Community Character: NYSDEC will use a consultation
procedure for local governments to advise on this aspect, and
based upon the advice, NYSDEC will slow down the permitting
process on certain applications
Anticipate a NYSDEC decision in 2012; April 1, 2012?
Extend the moratorium until further studies can
prove that HVHF can be done safely
NYS Legislature and Governor – legislation on
local control (yea or nay)
Funding for NYSDEC staffing to review permit
applications, monitor projects, and enforce
Enforcement penalties for violations, damages –
to the state, to local governments, to individuals
Municipal Perspective:
Post roads – local law based upon existing
authority, can deal with weight but not frequency
Voluntary agreements – build in mitigation
measures via NYSDEC and local conditions, but is
subject to voluntary negotiations
Local Road Use and Preservation Laws – regulates
all traffic that can damage roads, but consider
Home Builders lawsuit, should have an
engineering baseline
Zoning re: gas drilling – recent lawsuits favor
municipal Home Rule
General zoning – statutory authority, NYS
legislative history of not preempting local Home
Rule, Comprehensive Plans have standing, Court
of Appeals said land use decisions override
business operations via zoning, police powers
support Home Rule, can have local laws that apply
generally to all and only incidentally impinge on a
particular industry, e.g. gas
NYSDEC permitting process – send panel concerns
Industry Perspective:
Local governments have authority over roads,
property tax, and general applicability, but not
specific preemption for gas and oil.
Exercise and Protect Home Rule Authority
Hold Informational Meetings and Public
Enact a Moratorium: allows time for study and to
decide what actions may be needed to protect the
community in the future; more effective if a
moratorium is enacted before NYSDEC issues
Consider Amending the Zoning Code and Other
Local Land Use Regulations, and/or banning
Hydraulic Fracturing and Related Activities
Enter into Voluntary Road Use
Agreements/Contracts with Gas and Drilling
Require Letters of Credit, Bonds, or Escrow
Create or Update Comprehensive Plans
Adopt or Update Zoning Laws
Designate Environmental Protection Overlay
Adopt Road Use Protection Laws
Draft State Regulations may allow local
government input regarding Local Laws,
Comprehensive Plans, and Other Specific
Impacts to the Community Character, Quality of
Life, and Municipal and School District Budgets.
The NYSDEC would review and may approve,
deny, require supplemental environmental
review, and/or condition the permit.
The proposed State Regulations would not allow
local environmental review of specific
Consider Decision-Maker Conflicts of Interest
At a Town Board Meeting of the Town of
Brighton, Monroe County, New York, held
at the Brighton Town Hall, 2300 Elmwood
Avenue, in said Town of Brighton on the
28th day of December, 2011.
WHEREAS, the Town Board duly scheduled a Public Hearing to be held on the 28th day of December 2011 at 7:30 p.m., to
consider the adoption of a proposed Local Law of 2011 entitled “Hydraulic Fracturing and Related Activities Moratorium Local Law” for the
Town of Brighton, Monroe County, New York; and
WHEREAS, such public hearing was duly called and held and all persons having an interest in the matter having had an
opportunity to be heard; and
WHEREAS, the adoption of a moratorium is a Type II action under the State Environmental Quality Review Act; and
WHEREAS, based on the testimony and materials received at the public hearing, the Town Board deems it necessary and
advisable to adopt the proposed Local Law.
BE IT RESOLVED, that the Town Board of the Town of Brighton, pursuant to the provisions of Article 3 of the Municipal
Home Rule Law of the State of New York, hereby adopts the Local Law of 2011 entitled “Hydraulic Fracturing and Related Activities
Moratorium Local Law” as attached hereto as Exhibit “A”, for the Town of Brighton, Monroe County, New York.
Dated: December 28, 2011
Sandra L. Frankel, Supervisor
James R. Vogel, Councilman
Raymond J. Tierney III, Councilman
Louise Novros, Councilperson
Sheila A. Gaddis, Councilperson
Establish or update zoning laws that
control land use, including heavy
industrial activity, mining, and related
uses; this could be a double-edged sword
depending upon other industrial uses and
types of mining that may be desired by
the community
Consider Incentive Zoning as a
component of your local Zoning Code to
provide flexibility and negotiation
LOCAL LAW of 2011
Section 1. Title
This Local Law shall be known as the Hydraulic Fracturing and Related Activities Moratorium
Local Law of the Town of Brighton.
Section 2. Purpose
While hydraulic fracturing and directional gas drilling are not currently permitted uses in any
zoning district in the Town of Brighton, the Town Board desires to take further steps to ensure that
neither hydraulic fracturing directional gas drilling nor any ancillary or related uses or activities
take place within the Town, pending review, drafting and adoption of Town Code provisions
relevant to such activities. Serious health and environmental impacts caused by these uses could
threaten the health of the residents in the Town, could require the use of massive amounts of water,
or the transportation of massive amounts of water causing impact to Town highways and could
cause other aesthetic, environmental and public health impacts, resulting in the degradation of the
quality of life in the Town of Brighton and the Town’s infrastructure. It is the purpose of this local
law to enable the Town to have sufficient time to consider, draft and enact a local law or laws
relating to hydraulic fracturing, directional gas drilling and related or
ancillary uses to avoid such negative impact within the Town of Brighton.
Section 3. Moratorium
The Town Board hereby enacts a Moratorium which shall prohibit the review of any application, the grant of any
approval or permit, the issuance of any use or area variance, the grant of any preliminary or final site plan or
subdivision approval, and/or the issuance of any other Town approval or permit relating to any wells involving the
practices involving of directional gas drilling or hydraulic fracturing, or any use, business or project involving the
storage or vehicular transport of water to be used for hydraulic fracturing or any hydraulic fracturing fluids or waste
materials on, over, or about any real property within the Town.
Section 4. Supersession of Provisions of State Law
This Local Law is enacted pursuant to Section 10 of the Municipal Home Rule Law, and under section 22 of such
Law, is intended to supersede Sections 261-a, 264, 267, 267-a, 267-b, 273, 274-a, 274-b, 276, 277, 278, 279, 280 and 280a, as well as all inconsistent provisions of the Town of Brighton Code or Town ordinances.
Section 5. Term of Moratorium
This Local Law and the Moratorium established hereunder, shall expire one year from its effective date.
Section 6. Effective Date
This Local Law shall take effect immediately upon filing with the Secretary of State.
Section 7. Severability
If any clause, sentence, phrase, paragraph or any part of this Local Law shall for any reason be
adjudicated finally by a court of competent jurisdiction to be invalid, such judgment shall not affect,
impair or invalidate the remainder of this Local Law, but shall be confined in its operation and effect
to the clause, sentence, phrase, paragraph or part thereof, directly involved in the controversy or
action in which such judgment shall have been rendered. It is hereby declared to be the legislative
intent that the remainder of this Local Law would have been adopted had any such provision been
Be sensitive to the competing interests related to
hydraulic fracturing: boom or boondoggle?
Thus far, court decisions have supported municipal
Home Rule, but this may just be the beginning.
Legal appeals, “takings” claims, or new state
legislation make affect the NYS Supreme Court
Once the NYSDEC issues permits, if they do, local
governments may not have standing to oppose a
permit if no moratorium, ban, or other police power
of the government has been adopted.
Other legal and financial exposures
Educate decision makers and the community
Advocate with local representatives one-onone and at public meetings and public
Collect petitions for submission to the local
governing board and state representatives:
formal, informal
Local citizens should speak and write directly
to their own representatives…power of the
voters (e.g. Town of Caroline)
Bring in outside expert speakers as well as people
with first hand experience
Remember that one size doesn’t fit all
Consider the impact on property taxes and
municipal and school district services under the
NYS Property Tax Cap as costs for road
maintenance , public safety services, water and
waste water treatment, etc. increase as a result of
hydrofracking activity
Consider the impact on local property values for
homes with contaminated wells/drinking water
Monitor mortgage lending practices for
properties with gas leases; keep elected officials
apprised of changes that may affect property
values and property tax revenues
Create or update the Comprehensive Plan; a
Moratorium can be used for this purpose too
Encourage identification of environmentally
sensitive areas and advocate the creation of
Environmental Protection Overlay Districts
If NYS ultimately permits
hydrofracking, local governments will
be notified of the application.
Your local officials can respond in detail
to the NYSDEC’s review of applications
for drilling permits.
Local conditions and concerns may be
factored into the DEC’s decision to
approve, deny, supplement the
environmental review, or condition the
Find community partners and build coalitions
Use informal petitions to make a point
Use social media to send succinct messages to
local representatives, and to organize or remind
citizens of meetings: Facebook, Twitter, You
Tube, websites, Internet links, etc.
Attend board meetings in force, use the Open
Forum to inform and express perspectives;
submit comments in writing and ask that they be
entered into the record of the public meeting
Use the media – they are often short
staffed and appreciate ideas and
information brought to them by the
Alert to upcoming meetings, send press
releases, hold press conferences, write
letters-to-the-editor and guest editorials,
use Public Access Television if your
community has this service
www.R-CAUSE.NET – website provides links to many articles and
The Ithaca Times:
http://www.ithaca.com/news/dryden/article_0eb2bd4e- 91f6-11e08235-001cc4c03286.html
NY Times: Rush to Drill for Natural Gas Creates Conflicts with
Mortgages: http://www.nytimes.com/2011/10/20/us/rush-to-drill-forgas-creates-mortgage-conflicts.html
www.dec.ny.gov\[email protected]
[email protected] and [email protected]
Potential Health Impacts:
“Gasland” film
Dimock, PA:
http://laurensjournalonfracking.tumblr.com/post/17439463758/day-1-part-2carter-road#notes, http://laurensjournalonfracking.tumblr.com
Presented by
Former Supervisor
Town of Brighton (Monroe County)
New York
February, 2012
[email protected]
(585) 473-5872
(585) 733-3442 (cell)
(585) 244-1923 (fax)
Town of Brighton
(585) 784-5250
(585) 784-5373 (fax)

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