Illinois fracking rules update 3: state unveils the final rule

The final draft of the fracking regulations that was approved but not revealed last week has finally been made available to the public.  The product reflects heavy wear and tear from industry’s crusade in recent months to reverse progress by the Department of Natural Resources toward strengthening the regulations.  However, it also reflects that DNR fought back and preserved many of its improvements to the initial draft.

All in all, the results provide a sad object lesson in what happens when you exclude the public from a process that directly affects it.  DNR’s concessions to industry on any given issue may not have seemed particularly important to government officials behind the locked doors, but are plenty important to the citizens who now have to live with the decision made without their input.

So we’ll say it once again:  addressing fracking and its formidable risks through the Illinois political process, rather than setting up open and systematic deliberations involving the people bearing those risks, was asking for trouble from the get-go.  But we have what we have – which, we continually bear in mind, beats the fracking wild west we started out with before the statute was passed last year.  The statute’s protective measures remain in place.  What’s been lost, rather, is some of the regulatory language developed by DNR to better define and implement the statute’s terms, so as to foster consistently robust implementation and limit court battles over interpretation.  Much of that – although certainly not all – is gone now.  Also lost is the opportunity to implement citizens’ many constructive suggestions to improve the draft which they, unlike industry, were denied the opportunity to make a case for.

We are still reviewing the final rule.  However, we have identified a number of instances where language DNR added into its August draft to fix problems we had identified is now gone, at industry’s behest.  Here are some key examples: 

  • Elimination of decisionmaking criteria.  The final version reflects a sweeping elimination of language establishing specific decisionmaking criteria and required factual findings where the statute states only a broad general condition.  That is precisely what regulations are supposed to do.  When they don’t, and the language is left vague, the state and the public are in a significantly worse position: it is more difficult to enforce the rules, and harder to fend off legal challenges by industry.  Examples include the factual findings DNR’s August draft would have required in support of a conclusion that operations will not threaten public health or water resources, a statutory prerequisite to issuing a permit.  Those required findings are now gone.  Also gone are criteria DNR had added for assessing applicants’ claims that capturing excess gas, as opposed to flaring it off, is “economically unreasonable” (although DNR’s addition of required documentation for that claim remains).  Criteria for assessing whether a permit applicant’s water source management plan minimizes water withdrawals to the “maximum extent feasible,” as required by the statute, have been eliminated as well. 
  • More burdensome hearing request requirements.  The statute contains intentionally minimal requirements for requesting a public hearing regarding a permit application: the requestor need only submit a “short and plain statement” describing a legally sufficient interest in the matter.  The final version of the rules makes this required statement longer and a whole lot less plain – it’s now even worse than DNR’s initial draft on this point.  Hearing requestors will be required to identify the particular statutory provisions on which their objections are based (not a trivial burden for a concerned citizen without a lawyer), and set forth “to the extent possible” each objection and the factual basis for it (ditto). 
  • Elimination of the “adversely affected” definition. We fought long and hard for language in the statute that broadly allows any person who “is or may be affected” to request a permit hearing.  DNR added additional helpful language to guide the agency in assessing who falls into that category, but all that language is now gone. 
  • Elimination of discretionary setbacks.  In order to implement the statutory requirement to ensure against threats to public health, DNR’s August draft clarified that DNR can establish setbacks in addition to the minimum setback distances required in the statute where necessary to protect the public.  For instance, if DNR knows of a playground or community gathering place near a proposed well site and not otherwise expressly covered by the statutory setbacks, or learns of a heretofore unknown risk of being near a well site, it needs the authority to ensure that operations are conducted a reasonable distance away.  The final draft nonetheless eliminates that clarifying language.  This loss is particularly problematic given that significant new scientific studies have come out since the statute’s setbacks were drafted concerning the risks of living in proximity to fracking operations – like this study reported just last week of life-threatening levels of  toxics like formaldehyde found near well sites.  Since complete scientific information on which to base setback distances is clearly lacking, it is critical that DNR retain the flexibility to consider and act on new science as it emerges. 
  • Scaled back regulation of radioactivity contamination. Responding to widespread concern expressed in public comments that more was needed to address radioactive contamination associated with fracking, DNR’s August draft built on basic statutory language concerning radioactive hazards to establish a reasonably comprehensive protocol for monitoring and mitigating radioactivity.  Most of that is now gone, except for a few remaining provisions concerning testing of drill cuttings and flowback.
  • Weakened definition of “wholly contained.” We pushed during the public comment period for a clear definition of a “wholly contained” water body that is, under the statute, exempt from certain setback and water testing requirements.  DNR’s second notice draft created such a definition, which appropriately turned on whether the water body in question is connected to any other water body – since any connection could be a pathway for contamination to flow offsite.   The final version, however, adopts the Farm Bureau’s proposed definition, which essentially involves eyeballing a map to see if the boundaries of the lake or pond at issue are drawn inside the property lines, “regardless of its hydrological source or connection.”
  • Application requirements downgraded to “additional” status.  In DNR’s revised draft issued in August, in response to our concern that the regulations did little to define and flesh out the statute’s application requirements as regulations should, DNR added important provisions of this nature.  Many of these added provisions have now been downgraded to a new category of “additional information” – a distinction with significant practical consequences.  Ordinarily, if you put information in a permit application, you’re bound by what you said when you get the permit.  Not so with “additional information,” which does not get put into the permit as an enforceable condition.  Examples of important information shifted to the “additional” category include estimates of the anticipated flowback water volume and how often tanks will be emptied (data used to estimate tank size), the air emissions management statement (describing how air emissions control requirements will be complied with), water withdrawal monitoring methods, and procedures in the well site safety plan for what to do in an emergency. 
  • Limited duty to investigate geologic conditions. The regulations in principle require applicants to provide important information concerning the geological integrity of the formation to be fracked.  But in the final version, the left hand takes away what the right hand gives: applicants now have the express option to simply say they don’t know that information.  That is a problematic and wholly unnecessary loophole.  If applicants do not know about existing faults, water sources, susceptibility to vertical fracture, porosity, and all that sort of thing about the place they want to frack, then they darned well ought to be required to find out before fracking there.  The initial draft stated that this information must be provided “if known after reasonable inquiry,” and DNR had removed that somewhat problematic language in the August version.  But now we’ve reverted from the frying pan to the fire.

Certainly, it’s a long, sad list.  On the other hand, it is important to bear in mind that the final draft is still significantly better overall than DNR’s extraordinarily problematic initial draft.  A good number of DNR’s positive changes made in the August draft are still in there, over industry’s objection. These include the provisions aimed at ensuring permit modifications are not an end run around public comment, the restored presumption of liability (actually improved a bit in the final draft in response to our suggestions), technical language designed to keep non-water fracks from sliding under the statute’s applicability threshold, cross-references to requirements governing construction in flood plains, the 7-day limit on use of the emergency reserve pit for flowback waste, and so forth (these issues are described at greater length in earlier posts). Those improvements to the initial draft were, by and large, prompted by the record number of public comments considered by DNR. 

We have our collective work cut out for us as we move forward, fighting for robust implementation of the protections we have, for more protections that we need, and, we can hope, for the state to finally come to its senses and call a halt to fracking so we can have an actual grownup conversation about it: in public, with the doors wide open, and no smoking.