Illinois' draft fracking regulations: haste makes waste

The Illinois Department of Natural Resources today published a draft of its proposed fracking regulations in the Illinois RegisterSadly, looking through them brings the expression “haste makes waste” vividly to life.     The speeding train that is fracking in Illinois, which we tried for years to put the brakes on with a moratorium, is now hurtling through the rulemaking process, with the Department (at the behest of industry, it appears) pulling out all the stops to get the rules in place as soon as humanly possible.  The result is not, shall we say, a paragon of thoughtful drafting.

To DNR’s credit, within the amount of time it allotted itself to write these regulations after the fracking bill became law in June, it’s gotten a lot done.  The draft is at least superficially comprehensive, more than 100 pages long and addressing in some fashion the array of technical matters covered by the legislation.  And the Department adopted a number of the suggestions we sent them about provisions we think are critical to protect people – detailed permit application requirements, a reasonable process for public hearing requests, well-defined grounds for permit denial, and a few other things of that nature. 

But that said, the draft reads kind of like a term paper thrown together in an end-of-semester all-nighter.  That’s not surprising, as five months is hardly enough time to sufficiently address the myriad of complex issues that attend regulation of fracking.  Yet the Department rushed these regulations out the door even though it is not actually  facing any real deadline for completing them.  Rather, its deadline was self-imposed, in response to pressure from industry and its champions to get the regulations done immediately.  We, too, gave the Department some strong opinions about how the regulatory process should proceed, emphatically recommending that the Department hold initial public hearings and comment before it started drafting. 

But in the end, DNR was unwilling to take another few months to get right a set of regulations that the state is going to have to live with for perhaps decades.  The result is, frankly, a mess.  And it is an echo of the larger mess that Illinois has landed in because the General Assembly was likewise so eager to accommodate fracking interests that it refused to take the time necessary to get things done right. 

Indeed, one of the more serious problems with the regulations isn’t so much the fault of the Department as the fault of the statute that the legislature passed earlier this year that jumpstarted this process.  DNR was pressured into accepting a 60-day timeline for review of permit applications in the statute.  But it soon after became clear to DNR that 60 days is an absurdly short amount of time, not compatible with the extensive public comment and hearing opportunities the statute provides prior to permit issuance.  The draft regulations nonetheless manage to cram the public processes into that tiny time window.  But it’s at the expense of citizens’ opportunity to meaningfully review information provided late in the process to DNR and share their concerns before applications are approved. 

While DNR’s options were limited concerning the 60-day clock, it had many other opportunities to clean up the statute’s rough edges that it simply didn’t take.  DNR’s draft fails in many respects to achieve the basic purpose of regulations, which is to fill gaps and provide detail about how a statute will be implemented.  We asked the Department, for instance, to provide badly-needed definitions of important terms in the statute.  What does it mean, exactly, for pollution controls on smog-producing fracking emissions to be “cost effective” and hence required?  Or for information that industry asks to protect as a trade secret to have “competitive value” and hence qualify?  It did not provide these or numerous other amplifications we asked for.  Large parts of the draft simply reiterate, word for word, exactly what is in the statute, without fleshing out anything at all.    

But many other parts of the draft leave us almost wishing DNR had left things alone.  In numerous places, the proposed regulations threaten to undercut the protections in the statute that we fought so hard for.  Some of the worst examples are as follows:

  • Inviting overuse of open-air wastewater pits.  One of the crown jewels of the statute is the requirement that fracking wastewater be stored in tanks, not the open pits that have been leaking and spilling and giving off polluting fumes in other states.  It makes what was supposed to be a very limited emergency exception for wastewater flows that exceed tank capacity, and we fought for a requirement that the wastewater be removed quickly, within 7 days.  But the Department’s draft opens the door for industry to try to turn that limited exception into a gaping loophole.  The draft rules fail to specify, as we had asked, the method a well driller must use to calculate the size tanks it needs, in order to minimize the likelihood that it would ever need to use the emergency pit.  But they do dictate – contrary to common sense and the pretty clear words of the statute – that the 7-day deadline doesn’t actually start running when the contaminated waste is put into the pit, but only after all fracking operations are completed.   So what we’re left with is a means and incentive for industry to try to make routine use of the dangerous open-air pits, under the guise of “emergency” use, with no pressure to either prevent an overflow into the pit or deal with it quickly if it occurs. 
  • Roadblocks to doctors’ access to chemical information.  Another important provision we fought for requires the Department to ensure that, even when drillers claim trade secret protection for information about the chemicals they’re using, health professionals can get that information in an emergency.  But the draft regulations say only that the Department “may” give out that information, as though there should be discretion to decide whether to tell a doctor what’s in fracking fluid when it’s just been spilled on someone.  And the system for requesting the information is not particularly well thought out.  A health professional – say, an ambulance driver dealing with a spill from a truck on a highway at 5 a.m. – is instructed to call the Department during “normal business hours,” and the Department is given no specific deadline for a response.  The regulations would also give the ambulance driver a second option of calling the “trade secret holder” 24/7 – except that the regulations don’t actually provide any way to know who that is.   
  • Technicality could let big frack jobs escape regulation altogether.  We fought to ensure the law would cover large “high-volume” fracking operations by making it apply to anyone using more than 300,000 gallons of water.  We pointed out to DNR that some types of fracking don’t use water, but instead use substances like nitrogen (or nitrogen mixed with water) that could, if measured in liquid gallons, add up to smaller volumes – and that the regulations must expressly address such fracks to ensure that they’re consistently covered.  Industry representatives have told us and DNR that it would be easy enough for DNR to develop a conversion calculation to make sure those operations were covered.  Easy or no, the Department simply didn’t make the effort.  All-nighter term paper style, it punted, sloppily declaring gallons of nitrogen exactly equivalent to gallons of water.  This means that operators conducting non-water fracking operations might well try to slide under the 300,000 gallon threshold on a technicality, even though such operations are as large and dangerous and in need of regulation as a comparable job that uses only water.   

And the list goes on:  Absurdly low administrative fines -- $50 for first time offenders, maxing out at $500 if they violate the same rule four times.   Narrowing the presumption of liability that attaches under the statute when pollution is found near fracking operations, making it harder for the Attorney General and citizens to prosecute enforcement actions.   Allowing all kinds of significant changes to permits without a full application process, and hence cutting into citizen participation rights.  And more. 

If these many problems aren’t fixed, the waste made by DNR’s haste may well end up all over Illinoisans’ air, land, and water.  The good news, though, is that the game isn’t over yet.  The draft regulations are subject to a 50 day comment period, in which citizens can tell DNR what they think, and it will be required to respond.  If enough people speak up, there’s still hope that DNR’s metaphorical all-nighter will produce something that merits a passing grade.

About the Authors

Ann Alexander

Senior Attorney, Midwest program

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