Revised Illinois fracking rule: meticulous IDNR response closes some loopholes but warns that fracking is still risky

It’s been quite a while since the tumultuous public comment period on the first draft of Illinois’ fracking rules that ended in January, in which a record number of commenters criticized the draft’s multiple glaring inadequacies.  We have heard little about the rules these past 8 months, save periodic grousing from the oil industry, Chamber of Commerce, and other folks eager to sink toxics-filled holes into our state that the Illinois Department of Natural Resources was taking too long.   But the silence has now come to an end:  last Friday, the Department issued its revised draft of the rules.

If anyone was wondering what the Department was up to all that time, we now have our answer, in spades.  The revised draft, and the 361-page (yes, single spaced) response to public comments that accompanies it, is thorough, thoughtful, and exhaustively researched.  And most importantly, it addresses many of the problems we and thousands of others raised concerning the initial draft’s weakening of protections in the statute.  We are still digging diving deep into the weeds on the revised draft of the rules, but it’s already clear that IDNR’s approach of taking the time needed to hole up and hit the books, rather than succumbing to pressure to rush the process, was clearly the right one.

Friday’s revised draft was the “second notice” required under Illinois law – that is, it is now being submitted to the General Assembly’s Joint Committee on Administrative Rules (JCAR) for review.  JCAR has 45 days (extendable to 90) to review them and either approve them as-is, request changes, or block them.  

As on overall matter, we have made clear repeatedly in our ongoing advocacy for a moratorium that Illinois has no business moving forward with fracking at all given the multiple scientific studies emerging of late correlating fracking with harm to public health – including higher risk of birth defects, low birth weight, and cancer.   No one – not even an army of IDNR staffers working for 8 months straight – can put together a rule that effectively protects against fracking’s risks when we’re only beginning to understand what those risks are; and whether any safeguards (besides not fracking) could protect against them. The revised rules won’t fix that sorry situation. But they are a significant improvement over the Department’s first effort.

The revised draft is not perfect, by any means.  In our ongoing review, we have already identified a series of problems that still need to be fixed.  The administrative fines, while increased, are subject to a very low cap, and hence remain likely to be treated as a cost of doing business.  We also have lingering concerns about provisions governing well construction and water monitoring, among other things, which need to be addressed.  

But that said, IDNR has clearly worked hard to re-establish a number of important safeguards in the governing statute.  Here are some of the key issues we and other commenters raised regarding the initial draft, and how IDNR addressed them in the revised draft:

• Waste pits.  The initial draft created a loophole in the statutory requirement to store contaminated wastewater in tanks, effectively allowing drillers to make routine use of what’s supposed to be an emergency-only open pit – which is potentially a significant source of both air and water pollution. The revised draft now requires drillers to specify anticipated flowback wastewater rate and volume in the permit application, allowing IDNR to ensure that tank capacity is adequate; and strictly limits use of the pit to 7 days.
• Emergency access to chemical information.  The utterly unworkable system in the initial draft for making sure health professionals get access to information about fracking chemicals in an emergency engendered widespread and well-deserved mockery.  IDNR has now devised a reasonably credible system requiring, among other things, that companies who trade secret-protect their chemicals maintain a 24/7 hotline to ensure that needed information is provided in no more than 2 hours.   
• Applicability threshold.  The initial draft could potentially have allowed non-water frack jobs (for example, nitrogen fracking) to slip below the 300,000 gallon regulatory threshold with a little creative accounting, since it didn’t specifically say how to quantify non-water base materials.  The revised draft creates a sensible accounting method for such materials.
• Presumption of liability.  The initial draft partially gutted the statutory presumption that, if water near a fracking site was clean before fracking but contaminated after, then fracking was at fault – a means of ensuring that prosecuting an enforcement case is not impossibly difficult and costly.  The revised draft restores that presumption, although there remains a related issue with pre-enforcement investigations that still needs to be fixed.

IDNR appears to have addressed in some fashion a series of other major concerns we had expressed – concerning permit modifications, retroactivity, air emissions, and various other matters.  In so doing, IDNR went through the record number of public comments – 30,000 plus – and responded to most of them, fixing the identified problem where it thought possible.  Citizen advocates did not get everything we asked for, but IDNR did generally provide sound explanations for its responses, backed up where appropriate by an extensive, and meticulously footnoted, examination of technical literature, other states’ laws, and the authorizing statute (check out the 23-page bibliography). 

Many of the public comments did not address specific sections of the regulations, but rather voiced more general – and well-justified – concern about fracking generally, and the havoc its expansion could wreak in our state.  Rather than simply waving away these larger questions as irrelevant to the task at hand, the typical agency response in these situations, IDNR took them seriously.   The response to comments contains a thoroughgoing discussion of risks associated with fracking, from contamination to traffic to community disruption, and more.  IDNR makes very clear that these risks are real and credible, and that available data is insufficient to either fully comprehend or protect against them (as we have been saying all along).  IDNR acknowledges its lack of authority to decide whether fracking should occur at all in Illinois, but adds language where it can confirming its authority to take fracking’s many risks into account in permitting.

Finally, the Department in many places identifies problems that can only be addressed by the legislature, and the legislative task force assigned to assess the need for additional protections.   Most notable is the Department’s very real concern, which we share, with securing adequate resources to handle the flood of applications it anticipates receiving when the rules are finalized.  The rules are, in the end, only as strong as the Department’s capacity to enforce them.  Now that IDNR has done its part to shore up the rules, it is essential that the General Assembly support the Department as it prepares for the dangerous and controversial mess of fracking about to expand across our state. 

And we urge the General Assembly, once again, to take seriously the Department’s cool-headed assessment of fracking’s risks and re-think the direction we’re going.   IDNR does not have the power to stop the speeding fracking train—it can only draft rules to govern it.  But the General Assembly can and should step up and impose a moratorium on fracking until we have the science we need to make informed decisions about how to guard against its formidable risks.