23 Feb 2013

Collaboration on Illinois legislation could achieve standards for regulating hydraulic fracturing

Written by Jim Pierobon

Illinois is on track to go where no push for hydraulic fracturing has gone before in the U.S.: a consensus on how to regulate the controversial practice of injecting chemicals and large amounts of water deep underground to flush out large quantities of natural gas and crude oil.

As states such as New York and Maryland struggle over similar rules before giving industry permission to start drilling, an impressive array of industry representatives, environmentalists, regulators and lawmakers have worked up until this week behind closed doors with Attorney General Lisa Madigan to forge the “Hydraulic Fracturing Regulatory Act” in the Illinois General Assembly.

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Apologies for the low-resolution image but it at least outlines the Illinois and New Albany basins coveted by industry for shale natural gas and oil. CREDIT: Cropped from eia.gov

According to numerous accounts from the parties involved HB 2615, as drafted,would require oil and gas companies to test water before, during and after drilling. It would hold them liable if contamination was found after drilling began. It also would require companies to disclose the chemicals used in the process and control air pollution.

One shortcoming of the bill purely from a practical perspective is that it would also allow residents to sue if they believed they had been harmed. Imagine what opponents are likely to do with this provision. Anybody can ‘believe’ they’ve been harmed when quite possibly they may have no evidence of any harm.

Now if there IS evidence, that’s another story. Hopefully as this legislation winds its way through the legislative process in the Capitol in Springfield, it will require a reasonable measure of proof so as not to lose enough support from the industry to enable “fracking,” as it’s known, to proceed.

Most importantly, it can set an example of how disparate parties can find enough common ground to address the significant risks of fracking, ways to minimize them and ultimately how any harmed parties can be made whole.

“This is a situation where Illinois really is leading the way,” said Ann Alexander, a senior attorney with the Natural Resources Defense Council’s (NRDC) Midwest program, who participated in negotiations. “We hope we are setting a floor for others to be able to build on (because) there is very much a gold rush mentality.” Read more of her perspective here.

Twenty-nine members of the General Assembly, led by Assistant Majority Leader John E. Bradley from downstate where much of the natural gas is to be found, signed on to co-sponsor the bill by the time it was submitted February 21 to the Rules Committee in that chamber.

NRDC, Environmental Law and Policy Center, Sierra Club and other environmental groups all sought a state moratorium on fracking until public health risks and be fully studied and addressed. But the gold-rush mentality — yearning to grow domestic supplies of natural gas and oil and the thousands of jobs in each state that can come with it — is not likely to be derailed.

The real challenge, as The Energy Fix has pointed out previously here, is how to set achievable and sensible standards that address the biggest risks. A variety of stakeholder groups are working quietly toward that end. Two such risks are threats to regional water supplies and what to do about the release of methane, a potent greenhouse gas.

In a statement, America’s Natural Gas Alliance, stated: “Our companies look forward to engaging with Illinois policy makers as they develop rules for hydraulic fracturing and updates to the Illinois Oil and Gas Act that fit the unique circumstances in the state.”

How practical and protective any such law becomes remains to be seen. Kudos to the environmental groups for how  they helped draft what could be the most stringent, science-based, regulations possible under these circumstances.

Allen Grosboll, co-legislative director at the Environmental Law and Policy Center, told Huffington Post it’s likely the measure will pass the Legislature because of the unusual negotiations. “One of the more stunning aspects of this is legislation is that (lawmakers) invited the environmental community and industry to the table and, in more than five months of negotiations (produced) what I think is the most comprehensive fracking bill in country,” Grosboll said.

Here is how NRDC highlights key provisions of the bill:

  • Extensive regulation of the drilling process, mandating numerous best practices.
  • A requirement that all waste – which includes “flowback” of all the chemical-laced water pumped into the ground – be stored in closed tanks, rather than the pits that chronically leak and overflow elsewhere.
  • Restrictions on venting and flaring of natural gas (which contains the potent greenhouse gas methane, as well as other harmful constituents, and turns to smog).
  • A ban on the dangerous practice of injecting diesel (which contains carcinogenic hydrocarbons).
  • Required disclosure of all fracking chemicals to the public before operations commence (and limits on industry’s ability to claim that this information is a trade secret).
  • Citizen rights to public hearings concerning proposed permits, and to appeal permits that are granted.
  • Citizen enforcement against violations of law or permits.
  • Provisions to protect the state’s water supply, including authority to deny permits as necessary during drought conditions.
  • Baseline and post-frack testing of potentially affected waters to help identify instances in which contamination may be associated with fracking.
  • A presumption of liability for contamination that appears post-fracking in proximity to operations.
  • A detailed application, containing information about planned operations, that must be posted on a state web site.
  • Setbacks (albeit not always as large as we believe are necessary) from population centers – including schools, residences, and nursing homes – as well as water resources and nature preserves.
  • Mandatory plugging of nearby abandoned wells that can serve as pathways for contamination.
  • Regulatory authority to address the problem of earthquakes induced by underground waste injection.
  • Bonding and insurance requirements to enhance financial accountability.

Among the bill’s shortcomings: it does nothing to provide local communities with power to more stringently regulate fracking if they deem it neccesary. It also does not, and probably cannot, narrow or close loopholes in the federal Clean Air Act, Clean Water Act, and the loophole  that exempts drilling and fracking waste from being treated as hazardous.  Hat-tip to this ProPublica investigation that spelled out the risks of this exemption.

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