N.Y. Environmental Conservation Law § 23-0305: Powers and duties of the commissioner and the department

§ 23-0305. Powers and duties of the commissioner and the department.

1. The provisions of this section shall apply only to rules,

regulations, orders and hearings made or conducted in the administration

of this article.

2. No rule, regulation, order or amendment thereof, except in an

emergency, shall be made by the department without a public hearing upon

at least ten days' notice, exclusive of the date of service. The public

hearing shall be held at such time and place as may be prescribed by the

department and any interested person shall be entitled to be heard.

3. When an emergency requiring immediate action is found to exist, the

department may make an emergency order without notice or hearing, which

shall be effective when made. No emergency order shall be effective for

more than fifteen days.

4. Any notice required by this article shall be given by the

department by any one or more of the following methods: (a) personal

service, (b) publication in one or more issues of a newspaper of general

circulation in the county where the land affected or some part thereof

is situated, or (c) by registered or certified mail addressed, postage

prepaid, to the last known mailing address of the person or persons

affected. The date of service shall be the date on which service was

made in the case of personal service, the date of first publication in

the case of notice by publication, and the date of mailing in the case

of notice by mail. The notice shall specify the style and number of the

proceeding, the time and place of the hearing, and shall briefly state

the purpose of the proceeding. Should the department elect to give

notice by personal service, such service may be made by any officer

authorized to serve process, or by any agent of the department in the

same manner as is provided by law for the service of process in civil

actions in the courts of the state.

5. All rules, regulations and orders made by the department shall be

in writing, shall be entered in full and indexed in books to be kept by

the department for that purpose, and shall be public records open for

inspection at all times during reasonable office hours. A copy of any

department rule or regulation shall be received in evidence in all

courts of this state with the same effect as the original, if certified

by a member or duly authorized employee of the department.

6. The department may act upon its own motion or upon the application

of any interested person. On the filing of an application concerning any

matter within the jurisdiction of the department, pursuant to this

article, the department shall promptly fix a date for a hearing thereon,

and shall cause notice of the hearing to be given. The hearings shall be

held without undue delay after the filing of the petition. The

department shall make its order within sixty days after the conclusion

of the hearing.

7. To aid in the administration of this article, the commissioner may

issue subpoenas in his name requiring the attendance and giving of

testimony by witnesses and the production of books, papers and other

documentary evidence for any hearing, proceeding or investigation

conducted or to be conducted by or before the department. Service of

such a subpoena, enforcement of obedience thereto, and punishment for

disobedience thereof shall be had as and in the manner provided by the

Civil Practice Law and Rules relating to enforcement of a subpoena

issued by a board or committee except that in the case of hearings,

proceedings or investigations before or conducted by the department

neither the holder of a permit or lease issued pursuant to this article,

nor an employee of such permit holder or lessee, nor an officer or

stockholder in a permittee or lessee corporation, when required to

attend as a witness, shall be entitled to any subpoena fee or mileage.

Any member of the department or any person who may be designated by the

department to hold hearings may administer oaths to witnesses. The

department also may provide for the taking of depositions of witnesses

for the purpose of any such hearing. In such case such officer, employee

or other person may administer oaths to the witnesses whose depositions

are to be taken. Each deposition shall be reduced to writing and

subscribed by the deponent. The provisions of this subdivision shall

apply only to the administration of this article.

8. With respect to oil pools or fields and natural gas pools or

fields, the department shall have power to:

a. Make such investigations as it deems proper to determine whether

waste exists or is imminent.

b. Require identification of ownership of producing leases, tanks,

plants, structures and facilities for the transportation and refining of

oil and gas.

c. Classify and reclassify pools as oil or gas pools, or wells as oil

or gas wells, including the delineation of boundaries for purposes

material to the interpretation or administration of this article.

d. Require the drilling, casing, operation, plugging and replugging of

wells and reclamation of surrounding land in accordance with rules and

regulations of the department in such manner as to prevent or remedy the

following, including but not limited to: the escape of oil, gas, brine

or water out of one stratum into another; the intrusion of water into

oil or gas strata other than during enhanced recovery operations; the

pollution of fresh water supplies by oil, gas, salt water or other

contaminants; and blowouts, cavings, seepages and fires.

e. Enter, take temporary possession of, plug or replug any abandoned

well as provided in the rules and regulations, whenever any owner or

operator neglects or refuses to comply with such rules and regulations.

Such plugging or replugging by the department shall be at the expense of

the owner or operator whose duty it may be to plug the well and who

shall hold harmless the state of New York for all accounts, damages,

costs and judgments arising from the plugging or replugging of the well

and the surface restoration of the affected land. Primary liability for

the expense of such plugging or replugging and first recourse for the

recovery thereof shall be to the operator unless a contract for the

production, development, exploration or other working of the well, to

which the lessor or other grantor of the oil and gas rights is a party,

shall place such liability on the owner or on the owner of another

interest in the land on which the well is situated. When an operator

violates any provision of this article, any rule or regulation

promulgated thereunder, or any order issued pursuant thereto in

reference to plugging or replugging an abandoned well, the operator may

not transfer the operator's responsibility therefor by surrendering the

lease. Prior to the commencement of drilling of any well, the operator

shall be required to furnish to the department, and continuously

maintain, a bond acceptable to it conditioned upon the performance of

said operator's plugging responsibilities with respect to said well.

Upon the approval of the department, in lieu of such bond, the operator

may deposit cash or negotiable bonds of the United States Government of

like amount in an escrow account conditioned upon the performance of

said operator's plugging responsibilities with respect to said well. Any

interest accruing as a result of the aforementioned escrow deposit shall

be the exclusive property of the operator. The aforementioned bonding

requirements shall remain the obligation of the original operator

regardless of changes in operators unless a subsequent operator has

furnished the appropriate bond or substitute as herein provided

acceptable to the department and approval for the transfer of the well

plugging responsibilities to the subsequent operator has been granted by

the department. The failure of any operator to maintain a bond or other

financial security as prescribed herein shall be deemed a breach of

plugging responsibilities and entitle the department to claim the

proceeds of the bond or other financial security. The cost of plugging

or replugging any well, where such action is necessary or incident to

the commencing or carrying on of storage operations pursuant to section

23-1103 or 23-1301 shall be borne by the operator of the storage

facility.

f. Require that every person who produces, sells, purchases, acquires,

stores or injects oil or gas and associated fluids and every person who

transports oil or gas in this state shall keep and maintain complete and

accurate records of the quantities thereof. Quantities of associated

fluids injected or produced may be reported as estimated volumes. True

copies or duplicates shall be kept or made available for examination

within this state by the department or its agents at all reasonable

times and every such person shall file with the department such reports

concerning production, sales, purchases, acquisitions, injection,

transportation or storage on a form provided by the department or

approved by the department prior to submittal.

g. In addition to the powers provided for in titles 1, 3, 5 and 13 of

article 71, order an immediate suspension of drilling or production

operations whenever such operations are being carried on in violation of

this article or any rule or regulation promulgated thereunder or order

issued pursuant thereto. Any order issued pursuant to this paragraph may

be reviewed upon application of an aggrieved party by means of an order

to show cause which order shall be issued by any justice of the supreme

court in the judicial district in which any order applies and shall be

returnable on the third succeeding business day following the issuance

of such order. Service of such show cause order shall be made upon the

regional office of the department for the region in which such order

applies, and upon the attorney general by delivery of such order to an

assistant attorney general at an office of the attorney general in the

county in which venue of the proceeding is designated, or if there is no

office of the attorney general within such county, at the office of the

attorney general nearest such county. Except as hereinabove specified,

the proceeding to review an order under this paragraph shall be governed

by article seventy-eight of the civil practice law and rules.

h. Require the immediate reporting of any non-routine incident

including but not limited to casing and drill pipe failures, casing

cement failures, fishing jobs, fires, seepages, blowouts and other

incidents during drilling, completion, producing, plugging or replugging

operations that may affect the health, safety, welfare or property of

any person. The department may require the operator, or any agent

thereof, to record any data which the department believes may be of

subsequent use for adequate evaluation of a non-routine incident.

i. Require the taking and making of well logs, well samples,

directional surveys and reports on well locations and elevations,

drilling and production, and further require their filing pursuant to

the provisions of this article. Upon the request of the state geologist,

the department shall cause such duplicate samples or copies of records

and reports as may be required pursuant to this article to be furnished

to him.

j. Give notice to persons engaged in underground mining operations of

the commencement of any phase of oil or gas well operations which may

affect the safety of such underground mining operations or of the mining

properties involved. Rules and regulations promulgated under this

article shall specify the distance from underground mining operations

within which such notice shall be given and shall contain such other

provisions as in the judgment of the department shall be necessary in

the interest of safety. The department shall not be required to furnish

any notice required by this paragraph unless the person or persons

engaged in underground mining operations or having rights in mining

properties have notified the department of the existence and location of

such underground mining operations or properties.

k. (1) Except as to production of gas from lands under the waters of

Lake Erie, in order to satisfy the financial security requirements

contained in paragraph e of this subdivision for wells less than six

thousand feet in depth for which the department either shall have issued

or shall issue permits to drill such wells or, on or after June fifth,

nineteen hundred seventy-three, shall have issued acknowledgements of

notices of intention to drill such wells, without any way affecting any

obligations to plug such wells, the operator shall provide a bond or

other financial security acceptable to the department in the following

amount:

(i) for wells less than two thousand five hundred feet in depth:

(a) twenty-five hundred dollars per well, provided that the operator

shall not be required to provide financial security under this item

exceeding twenty-five thousand dollars for up to twenty-five wells;

(b) for twenty-six to fifty wells, twenty-five thousand dollars, plus

twenty-five hundred dollars per well in excess of twenty-five wells,

provided that the operator shall not be required to provide financial

security under this item exceeding forty thousand dollars;

(c) for fifty-one to one hundred wells, forty thousand dollars, plus

twenty-five hundred dollars per well in excess of fifty wells, provided

that the operator shall not be required to provide financial security

under this item exceeding seventy thousand dollars;

(d) for over one hundred wells, seventy thousand dollars, plus

twenty-five hundred dollars per well in excess of one hundred wells,

provided that the operator shall not be required to provide financial

security under this item exceeding one hundred thousand dollars.

(ii) for wells between two thousand five hundred feet and six thousand

feet in depth:

(a) five thousand dollars per well, provided that the operator shall

not be required to provide financial security under this item exceeding

forty thousand dollars for up to twenty-five wells;

(b) for twenty-six to fifty wells, forty thousand dollars, plus five

thousand dollars per well in excess of twenty-five wells, provided that

the operator shall not be required to provide financial security under

this item exceeding sixty thousand dollars;

(c) for fifty-one to one hundred wells, sixty thousand dollars, plus

five thousand dollars per well in excess of fifty wells, provided that

the operator shall not be required to provide financial security under

this item exceeding one hundred thousand dollars;

(d) for over one hundred wells, one hundred thousand dollars, plus

five thousand dollars per well in excess of one hundred wells, provided

that the operator shall not be required to provide financial security

under this item exceeding one hundred fifty thousand dollars.

(2) In the event that an operator shall have wells described in

clauses (i) and (ii) of subparagraph (1) of this paragraph, in lieu of

providing financial security under the provisions of each such clause,

such operator may file financial security as if all such wells were

between two thousand five hundred feet and six thousand feet in depth.

(3) For wells greater than six thousand feet in depth, the operator

may be required to provide additional financial security consistent with

criteria contained in rules and regulations to be adopted to implement

this subparagraph.

8-a. The department shall include consideration of future physical

climate risk due to sea level rise, and/or storm surges and/or flooding,

based on available data predicting the likelihood of extreme weather

events, including hazard risk analysis data if applicable, to permits

issued pursuant to title five of this article.

9. With respect to solution mining areas the department shall have the

power to:

a. Require identification of ownership of producing leases and

solution mining equipment such as structures, tanks, gathering systems

and facilities for the transportation of salt brine.

b. Require the drilling, casing, operation and plugging of wells in

accordance with rules and regulations of the department in such a manner

as to prevent the loss or escape of oil or gas reserves to the surface

or to other strata; the intrusion of brine or water into commercial oil

or gas reserves; the pollution of fresh water supplies by oil, gas or

salt water, and to facilitate the efficient use of ground and surface

waters in solution mining.

c. Give notice to persons engaging in underground mining operations of

the commencing of any phase of solution mining well operations which may

affect the safety of such underground mining operations or of the mining

properties involved. Rules and regulations of the department adopted

pursuant hereto shall specify the distance from such underground mining

operations within which such notice shall be given and shall contain

such other provisions as in the judgment of the department shall be

necessary in the interest of safety. The department shall not be

required to furnish any notice pursuant hereto unless the person or

persons engaged in underground mining operations or having rights in

mining properties have notified the department of the existence and

location of such underground mining operations or properties.

d. Require metering or other measuring of brine produced by solution

mining, and the maintenance of the records from each cavity or group of

interconnected cavities until the wells in a cavity have been plugged

and abandoned. These records shall be given to the department on

request.

e. Enter, take temporary possession of, plug or replug any abandoned

well as provided in the rules and regulations, whenever any operator

neglects or refuses to comply with such rules and regulations. Such

plugging or replugging by the department shall be at the expense of the

owner or operator whose duty it shall be to plug the well and who shall

hold harmless the state of New York for all accounts, damages, costs and

judgments arising for the plugging or replugging of the well and the

surface restoration of the affected land. Primary liability for the

expense of such plugging or replugging and first recourse for the

recovery thereof shall be to the operator unless a contract for the

production, development, exploration or other working of the well, to

which the lessor or other grantor of the solution salt rights is a

party, shall place such liability on the owner or on the owner of

another interest in the land on which the well is situated. When an

operator violates any provision of this article, any rule or regulation

promulgated thereunder, or any order issued pursuant thereto in

reference to plugging or replugging an abandoned well, the operator may

not transfer the operator's responsibility therefor by surrendering the

lease. Prior to the commencement of drilling of any well to which this

subdivision applies, the operator shall be required to furnish to the

department, and continuously maintain, a bond acceptable to it

conditioned upon the performance of said operator's plugging

responsibilities with respect to said well. Upon the approval of the

department, in lieu of such bond, the operator may deposit cash or

negotiable bonds of the United States Government of like amount in an

escrow account conditioned upon the performance of said operator's

plugging responsibilities with respect to said well. Any interest

accruing as a result of aforementioned escrow deposit shall be the

exclusive property of the operator. The aforementioned bonding

requirements shall remain the obligation of the original operator

regardless of changes in operators unless a subsequent operator has

furnished the appropriate bond or substitute as herein provided

acceptable to the department and approval for the transfer of the well

plugging responsibility to the subsequent operator has been granted by

the department. The failure of any operator to maintain a bond or other

financial security as prescribed herein shall be deemed a breach of

plugging responsibilities and entitle the department to claim the

proceeds of the bond or other financial security. Any order issued

pursuant to this paragraph may be reviewed upon application of an

aggrieved party by means of an order to show cause which order shall be

issued by any justice of the supreme court in the judicial district in

which any such order applies and shall be returnable on the third

succeeding business day following the issuance of such order. Service of

such show cause order shall be made upon the regional office of the

department for the region in which such order applies, and upon the

attorney general by delivery of such order to an assistant attorney

general at an office of the attorney general in the county in which

venue of the proceeding is designated, or if there is no office of the

attorney general within such county, at the office of the attorney

general nearest such county. Except as hereinabove specified, the

proceeding to review an order under this paragraph shall be governed by

article seventy-eight of the civil practice law and rules.

f. (1) In order to satisfy the financial security requirements

contained in paragraph e of this subdivision for all wells for which the

department either shall have issued or shall issue permits to drill such

wells or, on or after June fifth, nineteen hundred seventy-three, shall

have issued acknowledgements of notices of intention to drill such

wells, without in any way affecting any obligation to plug such wells,

the operator shall provide a bond or other financial security acceptable

to the department in the following amount:

(i) for wells less than two thousand five hundred feet in depth:

(a) twenty-five hundred dollars per well, provided that the operator

shall not be required to provide financial security under this item

exceeding twenty-five thousand dollars for up to twenty-five wells;

(b) for twenty-six to fifty wells, twenty-five thousand dollars, plus

twenty-five hundred dollars per well in excess of twenty-five wells,

provided that the operator shall not be required to provide financial

security under this item exceeding forty thousand dollars;

(c) for fifty-one to one hundred wells, forty thousand dollars, plus

twenty-five hundred dollars per well in excess of fifty wells, provided

that the operator shall not be required to provide financial security

under this item exceeding seventy thousand dollars;

(d) for over one hundred wells, seventy thousand dollars, plus

twenty-five hundred dollars per well in excess of one hundred wells,

provided that the operator shall not be required to provide financial

security under this item exceeding one hundred thousand dollars.

(ii) for wells between two thousand five hundred feet and six thousand

feet in depth:

(a) five thousand dollars per well provided that the operator shall

not be required to provide financial security under this item exceeding

forty thousand dollars for up to twenty-five wells;

(b) for twenty-six to fifty wells, forty thousand dollars, plus five

thousand dollars per well in excess of twenty-five wells, provided that

the operator shall not be required to provide financial security under

this item exceeding sixty thousand dollars;

(c) for fifty-one to one hundred wells, sixty thousand dollars, plus

five thousand dollars per well in excess of fifty wells, provided that

the operator shall not be required to provide financial security under

this item exceeding one hundred fifty thousand dollars;

(d) for over one hundred wells, one hundred thousand dollars, plus

five thousand dollars per well in excess of one hundred wells, provided

that the operator shall not be required to provide financial security

under this item exceeding one hundred fifty thousand dollars.

(2) In the event that an operator shall have wells described in

clauses (i) and (ii) of subparagraph (1) of this paragraph, in lieu of

providing financial security under the provisions of each such clause,

such operator may file financial security as if all such wells were

between two thousand five hundred feet and six thousand feet in depth.

(3) For wells greater than six thousand feet in depth, the operator

may be required to provide additional financial security consistent with

criteria contained in rules and regulation to be adopted to implement

this subparagraph.

10. In the case of any well legally plugged pursuant to subdivision

nine hereof, the responsibility for the cost of replugging or

reinforcing the plugging of any well, whenever such replugging or

reinforcing is made necessary by reason of the commencement or expansion

of storage operations, shall be borne by the operator of the storage

facility.

11. The department may use any of its powers for the purpose of

cooperating with any other state or jurisdiction in regulating or

otherwise affecting the development or production of oil, gas or salt at

any location where such development or production may have a physical

effect on development or production in such other state or jurisdiction.

12. With respect to the production of gas from lands under the waters

of Lake Erie:

a. This state shall indemnify all municipalities adjacent to Lake Erie

within the state of New York for expenses of restoration of fresh water

supplies, cleanup of beaches, piers and similar facilities, and for

liability claims arising from any discharge or spill occasioned by

exploration, drilling or production of operations.

b. If any oil or other hazardous substance is discharged in the course

of drilling for or piping natural gas so as to pollute the waters or

endanger other natural resources of the state, the department shall

immediately act to remove or arrange for the removal of such substance

and to terminate or arrange for the termination of such discharge,

unless the department determines that such removal or termination will

be done properly and expeditiously by the lessee, owner or operator of

the drilling or piping operation.

c. Whenever the department acts to remove or arrange for the removal

of any substance, or terminates or arranges for the termination of any

discharge, the department may draw upon moneys that may be set aside for

the department for such purposes from the governmental emergency fund,

under such terms and conditions as the governor and the legislature have

established for use of such moneys.

d. No action taken by any person to contain or remove a discharge

shall be construed as an admission of liability for said discharge.

Provided that any person who undertakes removal or cleanup operations

shall, at the request of the department or an appropriate federal

agency, coordinate his actions with ongoing state or federal operations.

No person who renders assistance in containing or removing a discharge

shall be liable for any civil damages to third parties resulting solely

from acts or omissions in rendering such assistance except for acts or

omissions of gross negligence or willful misconduct. In the course of

cleanup operations, no person shall discharge any detergent into the

waters of this state without prior authorization of the commissioner.

13. Every person granted a permit to drill pursuant to this section

shall give notice by certified mail to any local government affected of

the location of the drilling site prior to the commencement of drilling

operations. Such prior notice shall also be given by certified mail to

any landowner whose surface rights will be affected by drilling

operations.

14. With respect to wells drilled deeper than five hundred feet below

the earth's surface for the purpose of conducting stratigraphic tests,

for finding or producing hot water or steam, for injecting fluids to

recover heat from the surrounding geologic materials, which shall not

include closed-loop boreholes installed for the purpose of facilitating

a geothermal heating or cooling system, or for the disposal of brines,

the department shall have the power to:

a. Require all exploration, drilling and development operations to be

conducted in accordance with standards promulgated by the department in

rules and regulations.

b. Conduct investigations to determine the extent of compliance with

this section and all rules, regulations and orders issued pursuant

thereto.

c. Classify a well as one subject to this section and require its

identification as a geothermal, stratigraphic or brine disposal well.

d. Require the drilling, casing, operation, plugging and replugging of

wells subject to this section and reclamation of surrounding land in

accordance with rules and regulations of the department.

e. Enter, take temporary possession of, plug or replug any abandoned

well subject to this section as provided in the rules and regulations,

whenever the well's owner or operator neglects or refuses to comply with

such rules and regulations. Such plugging or replugging by the

department shall be at the expense of the owner or operator whose duty

it shall be to plug the well and who shall hold harmless the state of

New York for all accounts, damages, costs and judgments arising from the

plugging or replugging of the well and the surface restoration of the

affected land.

f. Require that the operator furnish to the department, and

continuously maintain, a bond or other financial security conditioned

upon the satisfactory performance of the operator's plugging

responsibilities with respect to said well. The failure of any operator

to maintain a bond or other financial security as prescribed herein

shall be deemed a breach of plugging responsibilities and entitle the

department to claim the proceeds of the bond or other financial

security. Such bond or other financial security shall be for an amount

as determined pursuant to the provisions of paragraph k of subdivision

eight of this section.

g. In addition to the powers provided for in titles one, three, five

and thirteen of article seventy-one of this chapter, order an immediate

suspension of operations carried on in violation of the oil, gas and

solution mining law or any rule or regulation promulgated thereunder or

order issued pursuant thereto.

h. Require the immediate reporting of any non-routine incident,

including but not limited to casing and drill pipe failures, casing

cement failures, fishing jobs, fires, seepages, blowouts and other

incidents during drilling, completion, producing, plugging or replugging

operations that may affect the health, safety, welfare or property of

any person or which may be injurious to plants or animals. The

department may require the operator or any agent thereof to record and

provide any data which the department believes may be of use for

adequate evaluation of a non-routine incident.

i. Require the taking and making of logs, samples, directional surveys

and reports on locations, elevations, drilling and production, and

further require filing of such information pursuant to the provisions of

the oil, gas and solution mining law. Upon the request of the state

geologist, the department shall cause such samples or copies of records

and reports to be furnished to the state geologist.

j. Give notice to persons engaged in underground mining operations of

the commencement of any phase of geothermal, stratigraphic and brine

disposal well operations which may affect the safety of such underground

mining operations or of the mining properties involved. The department

shall not be required to furnish any notice required by this paragraph

unless the person or persons engaged in underground mining operations or

having rights in mining properties have notified the department of the

existence and location of such underground mining operations or

properties.

15. The department is authorized to regulate for the purposes of

protecting natural resources and the environment or public health and

safety, closed-loop boreholes deeper than five hundred feet below the

earth's surface installed for the purpose of facilitating a geothermal

heating or cooling system and no later than December thirty-first, two

thousand twenty-four shall promulgate regulations relating to such

boreholes, and may update such regulations from time to time. When

regulating such closed-loop boreholes, the department shall consider

relevant prevailing industry standards.