Bill Text: NY A01741 | 2019-2020 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-08 - referred to environmental conservation [A01741 Detail]
Download: New_York-2019-A01741-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1741 2019-2020 Regular Sessions IN ASSEMBLY January 16, 2019 ___________ Introduced by M. of A. ABINANTI -- read once and referred to the Commit- tee on Environmental Conservation 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: 1 Section 1. Article 23 of the environmental conservation law is amended 2 by adding two new titles 15 and 16 to read as follows: 3 TITLE 15 4 DISCLOSURE OF COMPOSITION OF 5 HYDRAULIC FRACTURING FLUIDS 6 Section 23-1501. Definitions. 7 23-1503. Information submitted considered public; posting on 8 internet website. 9 23-1505. Service company disclosures. 10 23-1507. Operator disclosures. 11 23-1509. Use of services of noncomplying service company 12 prohibited. 13 23-1511. Trade secret protection. 14 § 23-1501. Definitions. 15 As used in this title, unless the context otherwise requires: 16 1. "Additive" means any substance or combination of substances found 17 in a hydraulic fracturing fluid, including a proppant, that is added to 18 a base fluid in the context of a hydraulic fracturing treatment. 19 2. "Base fluid" means the base fluid type, such as water or nitrogen 20 foam, used in a particular hydraulic fracturing treatment. 21 3. "Chemical abstracts service" or "CAS" means the chemical registry 22 that is the authoritative collection of disclosed chemical substance 23 information. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05056-01-9A. 1741 2 1 4. "Chemical constituent" means a discrete chemical with its own 2 specific name or identity, such as a CAS number, that is contained in an 3 additive. 4 5. "Hydraulic fracturing fluid" means the fluid used to perform a 5 particular hydraulic fracturing treatment and includes the applicable 6 base fluid and all additives. 7 6. "Hydraulic fracturing treatment" means the stimulation of a well by 8 the forceful application of hydraulic fracturing fluid into the relevant 9 geological formation for the purpose of creating fractures in the forma- 10 tion in order to facilitate production of hydrocarbons. 11 7. "Operator" means the person or entity authorized to conduct oper- 12 ations on a well. 13 8. "Proppant" means sand or another natural or man-made inert material 14 that is used in a hydraulic fracturing treatment to prevent artificially 15 created or enhanced fractures from closing once the treatment is 16 completed. 17 9. "Trade secret" means any confidential formula, pattern, process, 18 device, information or compilation of information that is used in a 19 person's or entity's business and that gives such person or entity an 20 opportunity to obtain an advantage over competitors that do not know or 21 use it. 22 10. "Well" means a hydrocarbon production well. 23 11. "Well completion report" means the report an operator is required 24 to file with the commission following the completion or recompletion of 25 a well, if applicable. 26 § 23-1503. Information submitted considered public; posting on internet 27 website. 28 Notwithstanding any other provisions of law, unless the information is 29 otherwise authorized to be withheld as a trade secret pursuant to this 30 title, information submitted to the department pursuant to section 31 23-1505 or 23-1507 of this title is public information, and the depart- 32 ment shall post the information on its publicly accessible internet 33 website. 34 § 23-1505. Service company disclosures. 35 1. An operator which authorizes any person or entity to conduct 36 hydraulic fracturing treatments upon any of such operator's wells in 37 this state shall disclose to the department and maintain an updated 38 master list of: 39 a. all base fluids to be used by such person or entity during any 40 hydraulic fracturing treatment in this state; 41 b. all additives to be used by such person or entity during any 42 hydraulic fracturing treatment in this state; and 43 c. all chemical constituents to be used by such person or entity in 44 any hydraulic fracturing treatment in this state and their associated 45 CAS numbers. 46 2. Notwithstanding the provisions of paragraph c of subdivision one of 47 this section, if the specific identify of any chemical constituent to be 48 used in any hydraulic fracturing treatment in this state is entitled to 49 be withheld as a trade secret pursuant to the criteria provided by 42 50 U.S.C. Section 11042(a)(2) and section 23-1511 of this title, the 51 department shall protect and hold confidential the identity of the chem- 52 ical constituent and its associated CAS number. To qualify for trade 53 secret protection, the person performing the hydraulic fracturing treat- 54 ment must submit to the department on an approved form a formal claim of 55 entitlement to that protection in the manner required by section 23-1511 56 of this title.A. 1741 3 1 3. A person or entity performing hydraulic fracturing treatments in 2 this state shall provide to the operator of each well for which the 3 person or entity performs a hydraulic fracturing treatment: 4 a. the maximum pump pressure measured at the surface and the type and 5 volume of base fluid used in each stage of the hydraulic fracturing 6 treatment; 7 b. a list of all additives used in the hydraulic fracturing fluid, 8 specified by general type, such as acid, biocide, breaker, corrosion 9 inhibitor, crosslinker, demulsifier, friction reducer, gel, iron 10 control, oxygen scavenger, pH adjusting agent, proppant, scale inhibitor 11 and surfactant; 12 c. for each additive type listed under paragraph b of this subdivi- 13 sion, the specific name of the additive used and the actual rate or 14 concentration of each additive, expressed as pounds per thousand gallons 15 or gallons per thousand gallons and expressed as a percentage by volume 16 of the total hydraulic fracturing fluid used; 17 d. a list of all the chemical constituents used in the hydraulic frac- 18 turing fluid and their associated CAS numbers, except to the extent that 19 the specific identity of any chemical constituent is entitled to be 20 withheld as a trade secret as provided by subdivision two of this 21 section; and 22 e. for each chemical constituent identified under paragraph d of this 23 subdivision, the actual rate or concentration of each chemical, 24 expressed as pounds per thousand gallons or gallons per thousand gallons 25 and expressed as a percentage by volume of the total hydraulic fractur- 26 ing fluid used. 27 4. The provisions of subdivisions two and three of this section shall 28 not be deemed to authorize any operator, person or entity to withhold 29 information that federal or state law, including this section, requires 30 to be provided to any health care professional who needs the information 31 for diagnostic or treatment purposes. The operator and person or entity 32 performing a hydraulic fracturing treatment shall provide directly to a 33 health care professional, immediately in request, all information 34 required by the health care professional, including the percent by 35 volume of the chemical constituents of the hydraulic fracturing fluid 36 and their associated CAS numbers. In a case that is not a medical emer- 37 gency, the health care professional shall provide the operator and the 38 person or entity performing the hydraulic fracturing treatment a written 39 statement of need for the information before the health care profes- 40 sional is entitled to receive the information. In a medical emergency, 41 the health care professional shall provide the operator and the person 42 or entity performing the hydraulic fracturing treatment a written state- 43 ment of need for the information as soon as circumstances permit. 44 5. A health care professional to whom information is disclosed pursu- 45 ant to subdivision four of this section shall hold the information 46 confidential, except that the health care professional may, for diagnos- 47 tic or treatment purposes, disclose such information to another health 48 care professional, a laboratory or a third-party testing firm. A health 49 care professional, laboratory or third-party testing firm to which 50 information is disclosed by another health care professional shall hold 51 such information confidential. 52 § 23-1507. Operator disclosures. 53 1. Following the completion of a hydraulic fracturing treatment on a 54 well, the operator shall include in the well completion report, on a 55 form approved by the department:A. 1741 4 1 a. the maximum pump pressure measured at the surface and the type and 2 volume of base fluid used in each stage of the hydraulic fracturing 3 treatment; 4 b. a list of all additives used in the hydraulic fracturing treatment, 5 specified by general type, such as acid, biocide, breaker, corrosion 6 inhibitor, crosslinker, demulsifier, friction reducer, gel, iron 7 control, oxygen scavenger, pH adjusting agent, proppant, scale inhibitor 8 and surfactant; 9 c. for each additive type listed under paragraph b of this subdivi- 10 sion, the specific name of the additive used and the actual rate or 11 concentration of each additive, expressed as pounds per thousand gallons 12 or gallons per thousand gallons and expressed as a percentage by volume 13 of the total hydraulic fracturing fluid used; 14 d. the information provided pursuant to subdivision three of section 15 23-1505 of this title to the operator by the person or entity who 16 performed the hydraulic fracturing treatment; and 17 e. if the operator caused any additives to be used during the hydrau- 18 lic fracturing treatment that are not required to be disclosed pursuant 19 to subdivision three of section 23-1505 of this title to the operator by 20 the person or entity who performed the hydraulic fracturing treatment: 21 (1) a list of the additives used; and 22 (2) for each additive listed, the chemical constituents of the addi- 23 tive and their associated CAS numbers and the actual rate or concen- 24 tration of each additive or chemical, expressed in the manner provided 25 pursuant to subdivision three of section 23-1505 of this title. 26 2. The operator may supply field service company tickets, excluding 27 pricing information, and reports regarding the hydraulic fracturing 28 treatment, as used in the normal course of business, to satisfy some or 29 all of the requirements of subdivision one of this section. 30 3. Notwithstanding the provisions of paragraph e of subdivision one of 31 this section, if the specific identity of a chemical constituent 32 contained in an additive is entitled to be withheld as a trade secret 33 pursuant to the criteria provided by 42 U.S.C Section 11042(a)(2) and 34 section 23-1511 of this title, the department shall protect and hold 35 confidential the identity of the chemical constituent and its associated 36 CAS number. To qualify for trade secret protection, the operator shall 37 submit to the department on an approved form a formal claim of entitle- 38 ment to that protection in the manner required by section 23-1511 of 39 this title. 40 4. The provisions of subdivision three of this section shall not be 41 deemed to authorize an operator to withhold information that federal or 42 state law, including this section, requires to be provided to any health 43 care professional who needs the information for diagnostic or treatment 44 proposes. An operator shall provide directly to a health care profes- 45 sional, immediately on request, all information required by the health 46 care professional, including the percent by volume of the chemical 47 constituents of the hydraulic fracturing fluid and their associated CAS 48 numbers. In a case that is not a medical emergency, the health care 49 professional shall provide the operator a written statement of need for 50 the information before the person is entitled to receive the informa- 51 tion. In a medical emergency, the health care professional shall provide 52 the operator a written statement of need for the information as soon as 53 circumstances permit. 54 5. A health care professional to whom information is disclosed pursu- 55 ant to subdivision four of this section shall hold the information 56 confidential, except that the health care professional may, for diagnos-A. 1741 5 1 tic or treatment proposes, disclose such information to another health 2 care professional, a laboratory or a third-party testing firm. A health 3 care professional, laboratory or third-party testing firm to which such 4 information is disclosed by another health care professional shall hold 5 the information confidential. 6 § 23-1509. Use of services of noncomplying service company prohibited. 7 An operator shall not use the services of another person or entity in 8 performing a hydraulic fracturing treatment in this state unless the 9 other person or entity is in compliance with the requirements of section 10 23-1505 of this title. 11 § 23-1511. Trade secret protection. 12 1. A claim of entitlement to trade secret protection pursuant to this 13 title shall include substantiating facts in the form of the information 14 required by 40 C.F.R. Section 350.7(a). If requested by the trade secret 15 claimant, the department shall treat any such substantiating facts as 16 confidential and shall not disclose them to any third party or the 17 public for any purpose. Until a final determination that the information 18 is not entitled to trade secret protection is made under this section, 19 the department shall treat the information implicated by the claim of 20 trade secret entitlement as a confidential trade secret, and the infor- 21 mation is not subject to disclosure pursuant to article six of the 22 public officers law. 23 2. The commission shall determine a claim of entitlement to trade 24 secret protection made pursuant to this title to be sufficient if the 25 information set forth in the claim supports all the conclusions set 26 forth in 40 C.F.R. Section 350.13(a) and the supporting information is 27 true. In making a determination as to a claim, the department may 28 require the trade secret claimant to submit additional supplemental 29 information if the information is necessary for the department to make 30 its determination under this section. If requested by the trade secret 31 claimant, the department shall treat any supplemental information 32 provided as confidential and may not disclose the information to any 33 third party or the public for any purpose. 34 3. If the department determines a claim of entitlement to trade secret 35 protection to be insufficient, the department shall notify the trade 36 secret claimant in writing of the determination by certified mail. Not 37 later than the fifteenth day after the date the trade secret claimant 38 receives notice of the determination, the claimant may request another 39 review of the claim. The trade secret claimant must show good cause for 40 the additional review. What constitutes good cause for purposes of this 41 subdivision is solely within the reasonable discretion of the department 42 and may include the availability of new supporting information or a good 43 faith error or omission on the part of the trade secret claimant in the 44 original claim. Not later than the thirtieth day after the date the 45 department receives the request, the department shall provide written 46 notice to the trade secret claimant of the department's acceptance or 47 rejection of the request. If a trade secret claimant makes a request for 48 review under this subdivision, the department shall treat the informa- 49 tion implicated by the claim of trade secret entitlement as a confiden- 50 tial trade secret until the department makes a determination with regard 51 to the review request. If the department rejects the review request, the 52 department shall continue to treat the information as a confidential 53 trade secret until the earlier of the thirtieth day after the date the 54 trade secret claimant receives notice that the department has rejected 55 the review request or the date the claimant withdraws the disclosure 56 pursuant to subdivision five of this section.A. 1741 6 1 4. Not later than the thirtieth day after the date the trade secret 2 claimant receives notice from the department that the department has 3 rejected the claim of entitlement to trade secret protection, the claim- 4 ant may commence an action pursuant to article seventy-eight of the 5 civil practice law and rules. If a trade secret claimant commences such 6 an action, the department shall treat the information implicated by the 7 claim of trade secret entitlement as a confidential trade secret until 8 such action and all appeals thereof are resolved. If the action affirms 9 the department's determination of the insufficiency of the claim, the 10 department shall continue to treat the information as a confidential 11 trade secret until the earlier of the thirtieth day after the date the 12 trade secret claimant receives notice that the action has been resolved 13 or the date the claimant withdraws the disclosure pursuant to subdivi- 14 sion five of this section. 15 5. Not later than the thirtieth day after the date the trade secret 16 claimant receives notification that the department has rejected the 17 claim of entitlement to trade secret protection or the date a final 18 judgment affirming the department's determination of the insufficiency 19 of the claim is entered, as applicable, and only to the extent that the 20 relevant chemical constituent has not been used by or for the trade 21 secret claimant in any hydraulic fracturing treatment in this state, the 22 trade secret claimant may formally withdraw the disclosure of a chemical 23 constituent by notifying the department of its intent to withdraw the 24 disclosure. If the trade secret claimant withdraws the disclosure of a 25 chemical constituent, the department shall protect and hold confidential 26 the identity of the chemical constituent and any corresponding CAS 27 number, and the information is not subject to disclosure pursuant to 28 article six of the public officers law. After the withdrawal, the chemi- 29 cal constituent shall not be used by or for the trade secret claimant in 30 any hydraulic fracturing treatment in this state unless the trade secret 31 claimant satisfies the requirements of this title relating to the 32 disclosure of information regarding the chemical constituent. 33 6. Notwithstanding any other provision of this section, the department 34 may: 35 a. disclose information otherwise subject to trade secret protection 36 under this section to a third-party testing firm in connection with the 37 investigation of a claim of contamination of surface water or groundwa- 38 ter if the firm agrees in writing to keep the information confidential; 39 and 40 b. use the results of a test conducted by a third-party testing firm 41 in connection with an investigation described in paragraph a of this 42 subdivision in any manner the department considers necessary to protect 43 public health and the environment. 44 TITLE 16 45 REGULATION OF HYDRAULIC FRACTURING 46 Section 23-1601. Definitions. 47 23-1603. Concession of liability. 48 23-1605. Agreements with real property owners. 49 23-1607. Damages. 50 § 23-1601. Definitions. 51 As used in this title, unless the context otherwise requires: 52 1. "Hydraulic fracturing" means the use of chemicals, water and other 53 substances injected or pumped into a natural gas well to stimulate the 54 extraction of natural gas.A. 1741 7 1 2. "Producer" means any individual or entity engaged in the drilling 2 for or extraction of natural gas through the utilization of hydraulic 3 fracturing. 4 § 23-1603. Concession of liability. 5 1. Every producer, prior to the issuance of any permit, pursuant to 6 this article, to engage in hydraulic fracturing, shall execute and 7 deliver to the department a concession of liability and waiver of all 8 defenses arising out of any cause of action related to property, 9 personal and wrongful death damages alleged to have been caused by 10 hydraulic fracturing conducted by such producer. Such concession and 11 waiver shall be executed in such form and manner as shall be determined 12 by the attorney general, and shall provide for strict liability to the 13 people of the state of New York and every person within the state for 14 any and all damages arising from the conducting of hydraulic fracturing 15 within this state. 16 2. Every producer which enters into an agreement with an owner of real 17 property in this state which provides for the lease, license or grant 18 of authority to conduct hydraulic fracturing upon such real property, 19 shall include a copy of its concession of liability executed pursuant 20 to subdivision one of this section and a similar concession of liability 21 executed in favor of the real property owner. Such concession of liabil- 22 ity in favor of a real property owner shall be in such form as shall be 23 determined by the attorney general. 24 § 23-1605. Agreements with real property owners. 25 1. No agreement for the lease, license or grant of authority to 26 conduct hydraulic fracturing upon real property in this state, shall be 27 executed until three independent appraisals of the value of such real 28 property have been conducted. Such appraisals shall be conducted at the 29 expense of the producer by appraisers selected by the real property 30 owner. Upon completion of such appraisals a copy of each appraisal shall 31 be provided to the real property owner, the producer and the department, 32 and shall be attached to every agreement providing for hydraulic frac- 33 turing upon such real property. 34 2. No agreement for the lease, license or grant of authority to 35 conduct hydraulic fracturing upon real property in this state, shall be 36 executed until the department shall have conducted water and soil 37 contamination testing upon such real property for the presence of 38 hydraulic fracturing fluids. A report of the results of such testing 39 shall be provided to both the real property owner and the producer. 40 3. Each producer shall include in every agreement it enters into with 41 the owner of real property in this state for the lease, license or grant 42 of authority to conduct hydraulic fracturing upon such real property: 43 a. a statement of the financial, health and environmental risks posed 44 by or potentially posed by conduct of hydraulic fracturing. Such state- 45 ment shall be jointly developed and periodically updated by the commis- 46 sioner, the attorney general and the commissioner of health; 47 b. a statement of the risks of ground soil and ground water contam- 48 ination posed by or potentially posed by the conduct of hydraulic frac- 49 turing; 50 c. a statement of the health risks posed by spills of and contam- 51 ination by hydraulic fracturing fluids; and 52 d. a statement of the producer's strict liability for any and all 53 damages resulting from the conducting of hydraulic fracturing, and the 54 damages that will be awarded therefor pursuant to this title. 55 § 23-1607. Damages.A. 1741 8 1 1. Notwithstanding any other provision of law to the contrary, upon 2 the contamination of ground soil and/or ground water by any producer, 3 such producer shall be liable for the following damages: 4 a. to the affected real property owner, an amount equal to one hundred 5 fifty percent of the real property value, as determined pursuant to 6 subdivision one of section 23-1605 of this title, and the full cost of 7 remediating the contaminated ground soil and ground water; and 8 b. to any person affected by such contamination, an amount equal to 9 the cost of the diagnosis, treatment, monitoring and care of such 10 person, for life, related to any disease or condition arising out of 11 such contamination. 12 2. Under no circumstances shall any amount of damages awarded or paid 13 pursuant to this section be deemed to be income to any person. All such 14 damages shall be reimbursement for losses actually incurred by the 15 recipient thereof. 16 § 2. Subdivision 9 of section 8-0109 of the environmental conservation 17 law, as added by chapter 219 of the laws of 1990, is amended to read as 18 follows: 19 9. An environmental impact statement shall be prepared for any action 20 found to have a significant impact on the special groundwater protection 21 area, as defined in section 55-0107 of this chapter or for any natural 22 gas or oil drilling involving the use of hydraulic fracturing fluid. 23 Such statement shall meet the requirements of the most detailed environ- 24 mental impact statement required by this section or by any such rule or 25 regulation promulgated pursuant to this section. 26 § 3. Subdivision 2 of section 23-0303 of the environmental conserva- 27 tion law is REPEALED and a new subdivision 2 is added to read as 28 follows: 29 2. For the purposes stated herein, this section shall supersede all 30 other state and local laws relating to the oil, gas and solution mining 31 industries; provided, however, that nothing in this section shall be 32 construed to prevent any local government from: 33 a. enacting or enforcing local laws or ordinances of general applica- 34 bility, except that such local laws or ordinances shall not regulate 35 oil, gas and solution mining regulated by state statute, regulation or 36 permit; or 37 b. enacting or enforcing local zoning ordinances or laws which deter- 38 mine permissible uses in zoning districts. Where oil, gas and solution 39 mining is designated a permissible use in a zoning district and allowed 40 by special use permit, conditions placed on such special use permits 41 shall be limited to the following: 42 (i) ingress and egress to public thoroughfares controlled by the local 43 government; 44 (ii) routing of drilling and drilling-related transport vehicles on 45 roads controlled by the local government; 46 (iii) requirements and conditions as specified in the permit issued by 47 the department concerning setback from property boundaries and public 48 thoroughfare rights-of-way, natural or man-made barriers to restrict 49 access, if required, dust control and hours of operation; and 50 (iv) conformance to road construction standards as may be otherwise 51 provided for by local law; or 52 c. enacting or enforcing local laws or ordinances regulating oil, gas 53 and solution mining not required to be permitted by the state. 54 § 4. This act shall take effect on the first of June next succeeding 55 the date on which it shall have become a law; provided, that the 56 provisions of title 16 of article 23 of the environmental conservationA. 1741 9 1 law, as added by section one of this act, shall apply to every lease, 2 license and grant of authority to conduct hydraulic fracturing which is 3 in effect on or after such effective date. Effective immediately, the 4 addition, amendment and/or repeal of any rule or regulation necessary 5 for the implementation of this act on its effective date are authorized 6 to be made and completed on or before such date.
