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Regulation will minimize the environmental impacts

New York's proposed regulation of fracking in the state may have just gotten a major endorsement by a recent draft U.S. Environmental Protection Agency report.

On Dec. 8, EPA released a draft report on its investigation of ground water contamination in Pavillion, Wyo., which was the source of numerous complaints by domestic well owners of bad taste and odor problems. The draft report concludes that both shallow and deep groundwater was likely contaminated by nearby high volume hydraulic fracturing natural gas activities.

A careful reading of the report shows that several of the drilling practices in Pavillion would have violated proposed New York State regulations. Under the current proposals, the operations conducted in Pavillion would not have occurred or would have occurred under procedures that would have prevented the resulting groundwater contamination.

First, the EPA tentatively concluded that shallow groundwater had been contaminated due to the use of surface pits for disposal of fracking water. Such pits are prohibited under New York's proposed regulations.

Second, the EPA noted that it was difficult to determine the source of deep groundwater contamination because (a) some of the additives in the fracking water were not known, and (b) there was very limited domestic well data to compare water quality before and after drilling occurred. Because all fracking additives must be disclosed by a permit applicant and a permittee must test local well water before, during and after drilling occurs, the proposed New York State regulations would prevent such difficulties.

Third, the EPA tentatively concluded that the drilling in Wyoming occurred at fairly shallow depths very close to deep aquifers, pipe casing did not extend below the maximum depth of the deep aquifer and cementing was insufficient in the deep aquifer zone. Again, New York's proposed regulations would prevent this, since they do not allow drilling to occur closer than 2000 feet below ground surface or within 1000 feet of a known underground water supply. Many of the fracking wells in Pavillion would have violated this requirement. In addition, casing requirements in the New York proposals would require pipe casing 75 feet below the bottom of a freshwater aquifer.

While it is impossible to remove all environmental risks associated with any industrial activity (including fracking), the details surrounding the EPA's findings in Wyoming tell us that New York's proposed regulations may be necessary to provide New Yorkers with the confidence that fracking can be done safely.

As various state agencies respond to the EPA report and tighten regulations, the additional costs of drilling in New York under the proposed regulations compared to other states may diminish or disappear altogether.

Dennis P. Harkawik is a partner in the law firm Jaeckle Fleischmann & Mugel LLP in Buffalo.