I, PAUL RUBIN, certify pursuant to the penalty of perjury under 28 U.S.C. 1746, that: 1. I am a hydrogeologist and hydrologist with thirty years of professional experience. I earned a B.A. degree from the State University of New York at Albany in 1977 and an M.A. degree in geology with a specialty in hydrogeology from the State University of New York at New Paltz in May, 1983. My professional experience includes work conducted for the New York State Attorney General’s Office (Environmental Protection Bureau), Oak Ridge National Laboratory (Environmental Sciences Division), the New York City Department of Environmental Protection, and as an independent environmental consultant as President of HydroQuest. My educational background and professional experience are more fully set forth in my Curriculum Vitae, attached as Exhibit A. All or most exhibits referenced in this affidavit and relied upon are attached hereto and incorporated by reference. 2. Within the broad field of hydrology, I have specialized expertise in both surface water and groundwater hydrology. Beyond this, I have specialized expertise in contaminant transport in fractured bedrock, unconsolidated and karst aquifers. I have conducted detailed assessments of streams, wetlands, watersheds, and aquifers for professional characterizations, for clients and as part of my own personal research. I have authored numerous reports and affidavits related to this work and have made presentations to judges, the NYS Assembly, the NYS Senate, and others. In addition, I have published papers and led all-day field trips relating to this work at professional conferences. 3. More recently, I have been called upon by a number of environmental groups and law firms to address hydrogeologic and environmental issues associated with hydraulic fracturing. A synopsis of this work is attached as Exhibit B. This work has been delivered in the form of various reports, presentations, and fact sheets. In addition, as a knowledgeable and concerned hydrogeologist, I have independently constructed and delivered testimony on the dangers of hydraulic fracturing to our freshwater aquifers to the Citizens Marcellus Shale Commission in Philadelphia, PA on September 6, 2011, to the New York State Assembly Standing Committee on Environmental Conservation in Albany, New York on October 6, 2011 and to the New York State Senate on April 25, 2012. 4. This affidavit is provided to the State of New York on behalf of Center for Sustainable Rural Communities of Richmondville, New York to document that the revised hydraulic fracturing regulations A) fail to acknowledge scientific rationale relative to setback distances provided to NYSDEC by HydroQuest both within and after the dSGEIS comment period, B) fail to use “facts and science” to develop setback distances, and C) seek to adopt setback distances irrespective of any empirical scientific basis whatsoever. Here, NYSDEC’s decision to not use 1
scientific information provided to them on setback distance when formulating draft regulations is used as one outstanding example of the States’ failure to use science in the gas regulation decision process. There are many more examples that could readily be brought forth if the State’s comment deadline were not unrealistically short and timed with the holiday season. While not the focus of this affidavit, it is worth pointing out that the construction of properly secured gas wells is beyond the scope of present technology. Failure of well sealant material is 100 percent assured. As such, no gas drilling regulations should be promulgated. 5. The draft regulations provide recommended setback distances from well pads that are so short that they will do little to protect the water resources of New York State, inclusive of aquifers and homeowner wells. These numbers have no defensible scientific or hydrologic basis and, thus, fail to fulfill the Cuomo administration’s stated intent that hydraulic fracturing regulations will be based on science. Furthermore, as is discussed below in paragraphs 8 and 10, setback distances should extend outward from the outer boundaries of lateral arrays, not from well pads. The State recommended setback distances are provided in new Subpart 750-3 to read as follows: “Subpart 750-3 High-Volume Hydraulic Fracturing (HVHF) Operations 750-3.3 Prohibited Activities and Discharges (a) The prohibitions in this section are in addition to those listed in section 750-1.3 of this Part, unless in conflict, superseded or expressly stated otherwise in this section. Well pads for HVHF operations are prohibited, and no SPDES permit will be issued authorizing any such activity or discharge: (1) within 4,000 feet of, and including, an unfiltered surface drinking water supply watersheds; (2) within 500 feet of, and including, a primary aquifer; (3) within 100-year floodplains; (4) within 2,000 feet of any public (municipal or otherwise) drinking water supply well, reservoir, natural lake, man-made impoundment, or spring; and (5) within 2,000 feet around a public (municipal or otherwise) drinking water supply intake in flowing water with an additional prohibition of 1,000 feet on each side of the main flowing waterbody and any upstream tributary to that waterbody for a distance of one mile from the public drinking water supply intake; and (6) within 500 feet of a private water well or domestic use spring, or water supply for crops or livestock, unless the Department has granted a variance from the setback pursuant to subparagraph 560.4(c) of this Title, adopted on XX, 20XX. (b) All distances noted above are measured from the closest edge of the HVHF well pad.” As is discussed below, all these setback distances should be replaced with the empirically-based setback distance of 4,300 feet, or more, as measured from the outer boundary of horizontal well arrays – not from well pads. Furthermore, regulation language should be worded so that no variances or loopholes are possible. While the intent of this affidavit is to highlight a single example of lack of scientific foundation behind NYSDEC gas industry regulations (i.e., setback
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distance), there are many others that could be addressed in a similar manner if the review time were not very short and situated within a holiday season. Similar treatment could readily be put forth relative to the 100-year floodplain value presented above. HydroQuest provided extensive hydrologic justification in dSGEIS comments, using empirical data and detailed statistical analyses to document that a 500-year floodplain value should be used. NYSDEC regulations have ignored the science provided and, instead, put out the 100-year flood value without sound scientific basis. Similar arguments regarding the lack of science behind regulations can be made for all of the detailed technical comments provided by HydroQuest for Schoharie Valley Watch. 6. The concept of setback distances is fundamentally flawed hydrologically because it fails to account for the recognized hydrologic fact that both shallow and deep groundwater flow from areas of higher to lower hydraulic head. Depending on a number of hydrogeologic variables, groundwater flow rates or seepage velocity may be slow or rapid. World recognized hydrologist Dr. Arthur N. Palmer, who is one of the most frequently cited hydrologists anywhere, addresses the concept of setback distance (Exhibit C). The following excerpts are from Exhibit C: “When shale-gas production ceases, the groundwater gradually returns to its original flow pattern. It is well known that natural groundwater follows long curving paths that extend deep below the surface and rise into valleys (Figs. 2 & 4). This is easily proved by application of hydraulic laws and by measurements in wells. It has been documented that more than 75% of the flow in nearly all surface rivers is delivered by groundwater. This is not just a hypothesis. Most of the residual contaminants from hydrofracturing will eventually move laterally and emerge in adjacent deep valleys. Some may move so slowly that they may take thousands of years to emerge; but with the enhanced permeability of the shale there is bound to be some that is faster-moving. Contaminants can also rise directly to the surface through unsealed wells, if the well bottoms are located near valleys where groundwater flow paths are oriented upward (as at X in Fig. 4). Valley aquifers are the greatest sources of groundwater for municipal, domestic, and industrial use, because that’s where the greatest population centers are located in the gas-rich plateau regions of the state. That is also where the most productive sand-andgravel aquifers are located, as well as all reservoirs, including those that supply New York City. The concept of “offset” from water supplies (e.g. 4000 ft) is entirely inappropriate for this kind of contaminant transport. The false security of setback distance The usual method of protecting water supplies (reservoirs, etc.) is to specify a “setback distance” within which no sources of contamination are allowed. A typical setback for reservoirs is 4000 feet. But arbitrary setback distances do not take into account local conditions. The lateral arms of hydrofractured wells must be included when determining the distance. In some cases the setbacks may be overestimated, but they are more often underestimated. A thorough hydrologic study is necessary to determine a feasible setback distance, but the standard methods are expensive, time-consuming, and often misleading (see Worthington et al., 2002).”
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7. To date, HydroQuest is the only firm or agency to provide rigorous setback numbers based on joint interconnectivity and proven hydraulic testing and response conducted within fractured bedrock aquifers. As discussed in the paragraph above, arbitrarily derived setback numbers do not take into account groundwater flow dynamics. Nonetheless, in recognizing that regulators will strive to lock in setback distances without the benefit of conducting needed site-specific hydrogeologic testing, HydroQuest has provided a minimum setback distance number based on hydrologically reproducible, empirically-based and defensible, hydrologic testing conducted in New York State. As part of the public review process of the dSGEIS, HydroQuest submitted extensive comments to NYSDEC on behalf of Schoharie Valley Watch on January 10, 2012 (this Schoharie Valley Watch comment report is hereby incorporated here by reference). Page 4 of this comment report summarized key setback issues which the draft regulations have not adequately considered: “9.0) Gas well setback distances need to be based on empirical data, not scientifically unsupported numbers. Setback distances provided in the SGEIS lack any scientifically based support. The SGEIS needs to be revised to provide rigorous, scientific, rationale for all setback distances provided. This report provides scientific justification for a minimum setback distance of 2,100 feet from waterways, wetlands, and wells. Until additional empirical data is provided for lower setback distances, there is no basis to use lower setback distance values. The 500-foot setback distance suggested from private wells in the SGEIS, for example, should be discarded as it is well within documented fracture lengths. Rigorous scientific justification of setback distances must be provided;� 8. This same dSGEIS comment report provided on behalf of Schoharie Valley Watch provided extensive additional detail regarding setback distances from gas wells and gas well laterals. The technical content of these comments and a related figure are presented here: “9.0 Setback Distances from Gas Wells and Gas Well Laterals The revised draft SGEIS should be modified with setback distances that are empirically based. Setback distances should be based on sound scientific data and consideration. Gas production well arrays are allowed to be placed within distances of less than 2,100 feet from water bodies (e.g., reservoirs, lakes, rivers, streams, wetlands), dams, pipelines and other vulnerable features. Regulatory setback distances (with short time limitations) from well pads (i.e., not well lateral arrays) in the revised draft SGEIS draft drilling regulations (4,000 feet of NYC and Syracuse watersheds; 2,000 feet from public water supply wells, river or stream intakes and reservoirs; 500 feet from principal aquifers, private water wells and domestic use springs) have no scientifically defensible basis and, as such, should be discarded until justifiable, empirically-based, setback distances are established. Based on aquifer test results obtained in NYS, gas well setback distances of less than 2,100 feet, inclusive of all horizontal projections, have a high probability of degrading groundwater, wells, caves, and surface water bodies from natural gas, fracking chemicals, and Light Non-Aqueous Phase Liquid (LNAPL) excursions along fracture and borehole pathways.
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For example, the 500 foot principal aquifer/private well buffer number lacks any actual empirical data to support it. Alternately, HydroQuest has analyzed empirical NYS aquifer test data and has determined that a minimum setback distance of 2,100 feet is warranted (see aquifer test drawdown and recovery data graphic below that documents nearly instantaneous (i.e., less than five minutes) hydraulic connectivity along fractures to at least 2,100 feet from pumping wells. This is a minimum, data-based, setback distance number that should be used as a base point in assessments designed to expand this number based on additional empirical studies. Because the 500-foot and other setback distances cannot hold up to rigorous scientific scrutiny and lack any empirical basis, they should be discarded. HydroQuest has provided this minimum setback distance based on empirical aquifer test data collected within the Delaware River Basin (see 4-09-11 HydroQuest DRBC Comment Report, pages 33 to 37 and the Aquifer Protection Expert Fact Sheet back available at http://hydroquest.com/Hydrofracking/ and incorporated by reference here). The drawdown and recovery pumping test figure below depicts rapid hydraulic connectivity between wells connected by bedrock fractures up to about 2,100 feet distant. This empirical hydrogeologic data collected from within a New York State portion of the Delaware River Basin should receive priority when determining setback distances vs. whimsical setback distances with no scientific foundation.
msl: mean sea level Setback distances should be established from beyond the outer boundary of gas well lateral as depicted below, not outward from individual well pads. The structural and gas anomaly work of Jacobi, Fountain and others, of visible joint lengths in New York State caves, as well as the results of the aquifer test illustrated above, document the presence of joints and faults extending over distances in excess of 2,100 feet. This distance is a minimum number. When cement sheaths and casing sealant materials fail (i.e., < 100 years) contaminants will move upward under hydraulic pressures into interconnected fracture sets and into freshwater aquifers and wells. Some of the inevitable contaminant 5
impacts may be lessened by establishing setback distances outward from the outer boundary of well arrays where a combination of natural and man-made or embellished fractures may provide upward contaminant pathways. The illustration below depicts this improved setback distance setting.â&#x20AC;?
9. Since HydroQuest submitted the setback discussion addressed in paragraphs 7 and 8 above, I have had opportunity to evaluate another large-scale pumping/aquifer test conducted in Town of Deerpark; Huguenot, New York to assess the adequacy of the water supply for the proposed Deerpark Village project. Here, pumping tests documented the hydraulic interconnection of bedrock wells via joints (i.e., fractures) to at least 4,300 feet from a pumping well. This demonstrates via a worldwide-accepted hydrogeologic testing methodology that groundwater movement can and does readily occur between interconnected joint sets. Thus, gas field
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contaminants introduced into such fractures from below or above, whether pressurized by hydraulic fracturing or not, can move over great distances. It is likely that additional analyses of other NYS pumping tests and contaminant dispersal will document even greater distances. The map below depicts the physical setting of this project area:
10. The importance of using 4,300 feet as a minimum setback distance has been brought to the attention of NYSDEC and, through them, to Governor Cuomo. The attached Fact Sheet 7
(Exhibit D) was constructed by HydroQuest and was provided to NYSDEC and the Governor on August 14, 2012 (via Eugene J. Leff; Deputy Commissioner; Office of Remediation & Materials Mgmt.; NYSDEC). This Fact Sheet and all the documents cited on it are hereby incorporated by reference to this affidavit. The relevant text from this Fact Sheet states: “ ‘Protective’ setback distances between gas wells and water resources, as proposed in state regulations, do not allow for groundwater flow, the migration of contaminants in groundwater, and ARE NOT based on any empirically-based data. The concept of setback distance is inappropriate hydrologically. To date, HydroQuest has provided the only empirically based value for setback distance (greater than 4,300 feet). Hydraulic fracturing should not be permitted in the absence of empirically-based setback distances from gas well horizontal arrays.”
11. Many pathways exist between deep gas-rich shale formations targeted by gas companies and relatively shallow fractured bedrock aquifers and homeowner wells. These include joints and faults (i.e., fractures) and poorly sealed and/or plugged and failing active and inactive oil and gas wells. These pathways are illustrated in the figure below:
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12. The gas industry has sought to convince the public at large and NYSDEC that there cannot possibly be any hydraulic connection between deep shale beds and overlying freshwater aquifers. As a professional hydrogeologist working with law firms that represent adversely impacted homeowners in different parts of Pennsylvania, including Dimock, I know this is not true. Upward movement of gas industry contaminants into homeowner wells has occurred and has adversely impacted homeowners, in part, because unrealistically small setback distances were used. 13. An excellent, and recent, documented example of the hydraulic connection between deep gas target zones and the ground surface occurred in Alberta, Canada approximately one year ago. This example illustrates how highly pressured hydraulic fracturing operations can rapidly force toxic fluids upward into any and all available pathways (such as those illustrated in paragraph 11 above) – even ¾ mile away from a wellhead as seen here. At the request of the Poughkeepsie Journal, Dr. Katherine Beinkafner (Mid-Hudson Geosciences) and I provided an assessment of this situation within the context of risk to water quality from gas industry practices. An edited version of our write-up provided below appeared in the Poughkeepsie Journal on January 9, 2013: “Most reasons to ban high volume hydraulic fracturing (HVHF) in New York State originate from petroleum production practices which will contaminate near surface aquifers and surface waters with the ultimate impact of degrading farmland, and delivering serious health effects to nearby property owners and residents. A recent report of the Energy Resources Conservation Board (ERBC) demonstrates exactly the potential routes of destruction of surface and near surface environment during a fracking procedure in a Midway Energy Ltd. well near Innisfail, Alberta, Canada on January 13, 2012. Midway drilled a horizontal well, which came within about 420 feet of the bottom of a vertical producing oil well operated by Wild Stream Exploration, Inc. The two wells were separated by about ¾ mile at the surface and have a vertical depth of 6068 feet. Fracking in the horizontal well was conducted between 12:08PM and 1:17PM. The ERBC report indicates that the first signs of interwellbore communication occurred around 3PM at the Wild Stream well. At about 4:30PM a passerby observed 30 feet of fracking fluid gushing up above the pump jack at the Wild Stream well and telephoned authorities and visited the Midway well site. What happened to cause this unanticipated hazardous release? During high pressure hydrofracturing operations in the Midway well, fracking fluid was pumped into the target formation, transmitted through the fractured formation, driven by pressure up the vertical Wild Stream well, and gushed out the top of the well casing and into the production and service lines of the oil well. By design, Midway drilled the horizontal well much too close to the nearby vertical producing oil well. Their modeling method was too close for real world conditions. As a consequence, the high pressures and volume of fracking fluid found the pathway of least resistance directly to the surface. At least 25,000 gallons of oil and fracking fluids were released. Luckily the ground was frozen and the liquid waste could be vacuumed up.
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This episode shows how quickly, within two hours, the fracking fluids can find a pathway of least resistance and contaminated fluids can reach the surface. The unintended consequences were not detected back at the fracking control station. Luckily a passerby spotted the situation. The incident could have happened at night, when no one might have observed the problem and reported it. In this case the pathway of least resistance was an operating oil well, but it could be an old abandoned well or rock openings such as faults, fractures, solution cavities (caves), or failing well casing, cement or clay plugs. After the fracking fluids emerge from such a pathway, methane will follow because the fracking pressure field remains in the subsurface for a matter of months approaching one year. This incident should not be viewed as a simple mistake that was cleaned up at the surface. More problems may arise from a poorly designed frack job and it demonstrates the risk of hydrofacking and fluid transport more than one mile upward to the surface from the high pressures in the process and their persistence thereafter.â&#x20AC;? This example demonstrates that highly pressurized fracking fluids can readily contaminate freshwater resources via all available openings, including fractures, faults and poorly sealed and failing boreholes/gas wells. 14. There is ample evidence in New York State that poorly plugged and failing oil and gas wells represent only the tip of the iceberg in terms of contaminant excursions upward into freshwater resources. In NYS, reports by Ron Bishop of SUNY Oneonta and Water Hang of Toxic Targeting have reported tens of hazardous subsurface fluids (including radioactive materials, brine, methane, and lethal chemical compound) that have come up in ponds, basements, garages, wells and other unanticipated locations. NYSDEC has published that there are 48,000 (1994) or 57,000 (2008) unplugged old wells. The risk of uncontrolled contamination of water supplies and consequential human health impacts is an overwhelming reason to ban HVHF and LVHF in NYS and elsewhere. It is not a safe process, especially since fracking fluids contain a myriad of hazardous chemicals. Congress has a 17 page single-spaced list of 750 ingredients. Adverse health effects associated with fracking have been reported in Pennsylvania and Ohio and more reports are forthcoming. Dr. Kathleen Nolan provides critical testimony linking setback distances with potential adverse health impacts from fracking chemicals (Exhibit E; submitted for Catskill Mountainkeeper via this affidavit submission). Once a water supply is damaged, cleanup is virtually impossible and cost prohibitive.
15. All hydraulic fracturing requires equal regulation in a single comprehensive set of regulations. No distinction based on fluid volume or other factors should be made between High Volume Hydraulic Fracturing (HVHF) and Low Volume Hydraulic Fracturing (LVHF). While the regulations and setback distances are intended to protect water resources and people from adverse environmental and health impacts associated with High Volume Hydraulic Fracturing, approval of these regulations would, by default, appear to carry with it the underlying erroneous concept that Low Volume Hydraulic Fracturing can also be conducted safely â&#x20AC;&#x201C; perhaps with the same setback distances or none at all. It cannot. Yet, all the same concerns related to HVHF also directly relate to LVHF. While adverse impacts could manifest themselves anywhere where
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fracking chemicals contaminate groundwater, the greatest potential for widespread and massive harm to peoplesâ&#x20AC;&#x2122; health exists within watersheds with reservoirs that supply large populations. The number of NYS residents who may potentially experience adverse health impacts from exposure to fracking chemicals would be greatest when drawing from water supplies that originate within watersheds supplying New York City and Syracuse. The great environmental and health risks associated with hydraulic fracturing operations in watersheds with reservoirs are detailed in a technical report by HydroQuest titled: Hydraulic Fracturing within the Muskingum River Watershed in Eastern Ohio with Justification & Recommendations in Support of a Drilling Moratorium within Reservoir Watersheds and Statewide Legislation Banning Hydraulic Fracturing. This report may be viewed at: http://hydroquest.com/Hydrofracking/ and is hereby incorporated within this affidavit by reference. This October 17, 2012 report was provided to NYSDEC via Eugene J. Leff (Deputy Commissioner, NYSDEC) on November 13, 2012. We are concerned that approval of the draft HVHF regulations will have adverse consequences in LVHF settings. This risk is explored in the following four paragraphs. Unless there is some legally-binding agreement that no HVHF or LVHF will ever be permitted in these watersheds, and no variances whatsoever are possible, then the concerns raised below should be incorporated within the draft regulations, inclusive of LVHF gas industry operations.
16. Absent legally-binding agreements that forever protect New York City and Syracuse watersheds and reservoirs from any kind of gas or oil extraction, via LVHF and HVHF, we will examine the question of whether or not hydraulic fracturing and gas extraction will ever be allowed within NYC and Syracuse watersheds? The answer may well be yes. An initial look at the draft revised NYSDEC gas drilling regulations indicates that it will, but that it may proceed with hydraulic fracturing fluid volumes of less than 300,000 gallons per well completion or via an alternate well stimulation/development technology. Millions of people depend on forever protecting these water supplies from toxic hydraulic fracturing chemicals. To this end, scientifically based setback distances are critical.
17. Draft regulations currently under review largely address High-Volume Hydraulic Fracturing (HVHF). The regulatory emphasis on HVHF can easily mislead the public into believing that millions of people in New York Stateâ&#x20AC;&#x2122;s largest cities will continue to get pristine water from watersheds devoid of thousands of gas wells and the use of toxic and carcinogenic chemicals. New York City and Syracuse watersheds are considered to be unfiltered surface drinking water supply watersheds (as per the NYSDEC definition). As written, the regulations would prohibit well pads and HVHF within 4,000 feet of, and including, an unfiltered surface drinking water supply watershed. This would not, however, preclude long gas well laterals from extending beneath portions of these watersheds, as long as the well pads were placed at least 4,000 feet outside watershed boundaries. Some gas well laterals extend outward almost 2 miles from well pads. Again, unless there are legally-binding agreements in place to prohibit gas exploitation from beneath these watersheds, this may be a real concern. If there are legally-binding agreements in place, we request that you provide them to us.
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18. Importantly, these regulations do not appear to preclude the placement of hundreds and thousands of gas and oil wells using more traditional Low-Volume Hydraulic Fracturing (LVHF) techniques for either vertical wells or vertical wells with long horizontal laterals. As gas field and well stimulation technology advances, it is likely that the gas industry will use new or modified technologies to extract natural gas from deep gas-rich shales beneath New York City and Syracuse watersheds. This will likely involve lower quantities of contaminant laden frack fluids, yet water quality degradation is assured. This is because 1) toxic fracking fluids will be used, 2) natural contaminants present at depth will be released, 3) 100 percent of all wellbore sheaths and plugs will fail in less than about 100 years, often far less, and 4) both shallow and deep groundwater flow systems will discharge gas field contaminants upward into wells, aquifers, waterways, and reservoirs. Similarly, frack fluids and other contaminants disposed of underground in injection wells will eventually flow with regional groundwater upward into aquifers, waterways and reservoirs used as potable water supplies. The regulations should be revised to preclude any underground injection of non-potable fluids, as they will eventually surface in our freshwater aquifers. The regulations fail to recognize groundwater flow dynamics known to hydrologists for over half a century. Again, unless there are legally-binding agreements in place to prohibit oil and gas exploitation from within these watersheds, this may leave a loophole which could be pursued later in time by the gas industry. This could result in significant adverse public health impacts.
19. If there are legally-binding agreements in place that prohibit oil and gas exploitation from within these watersheds, then there may be limited public health concern. If not, the future of NYC and Syracuse watersheds and reservoirs may readily be envisioned by viewing the figure below that depicts part of the watershed around Senecaville Lake in Ohio. Simply change the name to Ashokan, Pepacton, Neversink or Schoharie and envision the steady degradation of the Stateâ&#x20AC;&#x2122;s water resources and quality of life. The quality of the worldâ&#x20AC;&#x2122;s premier water supplies will needlessly be placed in jeopardy if hydraulic fracturing in either form, LVHF or HVHF, is permitted in NYS, as will the health of millions of people.
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20. Conclusions. The draft regulation setback distances are not sufficient based on hydrogeologic analysis documented and provided previously to NYSDEC and discussed in this affidavit. As such, use of scientifically unfounded and proposed State regulatory setback distances poses great risk of adversely impacting water quality and the health of NYS waters and residents’ due to contaminant incursions from gas industry activities. The Cuomo administration has stated that “facts and science” will determine the state’s decision on fracking. The proposed setback distances in the draft regulations are not based on any scientifically defensible or reproducible, empirically-based, science. To date, HydroQuest is the only firm or agency to provide rigorous setback numbers based on joint interconnectivity and proven hydraulic testing and response conducted within fractured bedrock aquifers. Based on my expertise as a professional hydrogeologist, arbitrarily derived State setback numbers (i.e., without a hydrogeologically supported basis) do not take into account groundwater flow dynamics. Nonetheless, in recognizing that regulators will strive to lock in setback distances without the benefit of conducting needed site-specific hydrogeologic testing, HydroQuest has provided a minimum setback distance number of 4,300 feet based on hydrologically reproducible, empirically-based and therefore defensible, hydrologic testing conducted in New York State. Importantly, this minimum setback value should extend outward from the outer boundary of gas well horizontal arrays, NOT from well pads. This value should be adopted for ALL draft regulation setback distances, as presented in paragraph 5 above, because it has been proven hydrogeologically. All draft regulation setback distance values are arbitrary and without any scientifically reproducible data and analysis and, thus, supportable hydrogeologic merit. They should be discarded. Should the NYSDEC have supportive data and analyses, they should be provided to the public for review and comment prior to promulgating setback regulation distances. As stated by Governor Cuomo, the decision to advance hydraulic fracturing in New York State must be based on facts and science. The NYS proposed setback values have NO rigorously documented scientific basis and should be abandoned.
21. Recommendation. Gas regulation setback distances should be mandated to be on reproducible, scientifically-founded, hydrogeologic based science. Adopt a minimum universal setback distance of 4,300 feet until additional hydrogeologic analyses have been conducted – all based on pumping tests and contaminant migration studies conducted throughout NYS areas underlain by gas-rich shales that could potentially be targeted for gas extraction, now or in the future. Relative to protection of irreplaceable water supplies, it is best to err on the safe side.
22. This report is based on information available to me, as an expert in the field of hydrogeology with over 30 years of experience. If there are legally-binding agreements that preclude HVHF and/or LVHF forever from New York City and Syracuse watersheds, this is not known to me. Should additional information become available in the future, I reserve the right to determine current or future impacts, if any, or the potential for impacts considering any new information released or available in order to draw scientifically based conclusions as an expert in the field of hydrogeology and to then modify or supplement this affidavit as necessary.
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_________________________ Paul A. Rubin
Sworn to before me this 11th day of January 2013.
Notary Public, State of New York
Exhibits: Exhibit A - Paul Rubin Resume Nov 2012 Exhibit B - HydroQuest Gas Drilling Related Work 11-03-12 Exhibit C – Potential Contaminant Paths from Hydraulic Fracturing of Shale Gas Reservoirs by Dr. Arthur N. Palmer Exhibit D – Key Reasons to Ban Hydraulic Fracturing in New York State – Submitted to NYSDEC on 8-14-12 by HydroQuest Exhibit E – Dr. Kathleen Nolan’s Testimony of 1-10-13: Protecting the future of the Catskills; Submitted here for the Catskill Mountainkeeper
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