NRDC and its coalition partners rang in the New Year today with an extensive and detailed set of comments on the draft regulations implementing the Illinois fracking bill passed last spring. We’re joining the thousands of other concerned citizens around the state who were undaunted by the unfortunate and unnecessary holiday season timing of the comment period decreed by the State, and made time amid the tinsel and eggnog to spell out the deep flaws in the rushed draft.
In previous posts, I flagged some of the most deeply troubling examples of the problems in the rules, reflecting the Department of Natural Resources’ apparent desire to set a land speed record in getting them done, rather than getting them right. Our comments provide detailed analysis of those major issues, and propose a constructive solution wherever possible.
For example, we give DNR a set of recommendations to improve the rules’ egregiously deficient provisions for supplying information about fracking chemicals to doctors and first responders in an emergency. We provide a thorough technical explanation of how drillers could potentially try to wriggle out of the requirements of the law altogether if the rules do not define the applicability threshold for all different types of fracking, not just the kind that uses water. We lay out in detail just how many of the harmful pollutants intended to be covered by the statute’s presumption of liability would be excluded by DNR’s flawed reading of law (it’s a boatload). We propose language governing permit modifications to make sure they’re not used to escape the rigors of the statute’s permitting requirements. And we propose language defining a more fair and rational public hearing process.
In addition to these major problems we previously identified, our 29 single-spaced pages of comments also address the myriad places throughout the draft where DNR’s hastily-drafted and poorly thought out language has created a host of additional problems – collectively adding up to a great big mess. Here are some examples, to give you a flavor:
- Timeframes. The draft rules allow exceedingly long timeframes to perform simple tasks, like the 21 days for the Department to post a list of fracking chemicals after receiving it, or the 35 days for an applicant to confirm that required notice has been provided to the public, undercutting citizens’ ability to participate in the time-limited permitting process and protect themselves.
- Definitions. The rules fail to define critical terms, such as, for instance, what it means for measures to capture gas to be “economically unreasonable” so as to allow flaring; what constitutes “competitive value” justifying trade secret protection; what it means for a waterbody to be “wholly contained” on a property so that testing requirements can be waived; what it means for piping materials to be “compatible” with fracking fluid; what “routinely” inspecting tanks means in terms of actual frequency; and what are the “good engineering practices” that need to be used to prevent reserve pit overflow.
- Plans. With a few exceptions, there is very little specification of the required contents of the various plans required to be submitted with the application. For example, what are the specific types of facts that must be shown to demonstrate that water withdrawals have been minimized “as much as feasible” in the water source management plan? And how should applicants go about identifying the best practices and equipment to include in the containment plan?
- Sampling results. The rules require that pre-frack water sampling results be posted on the Department’s web site but, incomprehensibly, not post-frack sampling results. Without the post-frack sampling results, of course, there is no way for the public to know whether fracking has contributed to water contamination.
- Monitoring. The draft rules contain no requirement that flaring or venting, if it occurs, be monitored to collect information for annual reports. Without a monitoring requirement, operators may resort to providing estimates based on questionable methods and assumptions.
And so forth. You get the idea. In many cases, these types of problems flow from the fact that DNR simply took the statutory language and imported it word-for-word into the regulations, without thinking through the specifics; and thinking through the specifics is the whole purpose of regulations. As with the major problems we flagged initially, we have been as constructive as possible, suggesting specific changes that could be made to address them.
And now, it’s DNR’s turn to be constructive. Our comments – and those of the thousands of deeply concerned Illinoisans who have weighed in – are pretty clear evidence that DNR’s rushed, sloppy approach is not working, and not serving the public interest. With the comments submitted, DNR has a chance to turn things around in crafting the revised draft for submission to the General Assembly’s Joint Committee on Administrative Rules. Like all of us who made resolutions for the new year, we hope DNR will take the opportunity to step back, re-evaluate what it’s done, and resolve to proceed in a more deliberate, careful, and transparent manner in revising the draft into a set of regulations that will better protect our state’s families and communities.