Revised fracking rules head to Legislature
They’ve plowed through the feedback, and now the N.C. Mining and Energy Commission has in hand a revised version of rules to govern oil and gas development in North Carolina, all ready for the new legislative session.
The commission members had a tough job — the initial draft spurred an onslaught of comments so large that it delayed the commission’s initial timeline to report on them. Statewide, more than 217,000 comments came to the MEC, and a September public hearing in Cullowhee drew at least 560 people. The comments were largely negative about fracking in general and the rules in particular, but the MEC had the challenge of amending its rules to reflect the comments while still finalizing something that met the directive from the Legislature — to pave the way for hydraulic fracturing, known as “fracking,” in North Carolina.
“We don’t make law. They do,” said Vikram Rao, commission chairman.
Maybe so, but you don’t have too look far to find someone who’s supremely displeased with the way the revisions shook out.
“I don’t see the revisions as changing much at all,” said Sally Morgan, energy and water justice organizer and researcher for Clean Water for North Carolina. “These rules are still much too weak to protect the public from the danger of fracking.”
“It’s been a while since I looked at them, and I was so depressed afterward because they really didn’t make any significant change from the comments they received,” said Donna Dupree of the Jackson County Coalition Against Fracking.
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“I think that the revised rules are disappointing in light of the fact that the MEC received over 200,000 comments, and those comments are not reflected in the rules,” said Mary Maclean Asbill, senior attorney for the Southern Environmental Law Center.
However, the revised set of rules does sport some marked differences from the original document.
Open pits
When frackwater comes back up the wellbore, it has to go somewhere to await transport to whatever waste processing facility it’s headed toward. In the first round of comments, the rules’ OK of waste storage in open pits was a big sticking point.
“Allowing companies to store toxic fracking chemicals in open pits is a recipe for disaster,” Asbill said. “We’ve just come off this [Duke Energy] coal ash catastrophe and to have more holes in the ground full of toxic waste, that are legal, in my mind is just horrible.”
The revised rules still say open pits are OK, but they make some changes to how they must be built. Pits now must be big enough to accommodate a 25-year flood, and sensors and an alarm system must be installed to immediately report any seepage from either the primary or secondary layer of pit liner.
“As written, I believe they’re safe,” Rao said. “Industry practice is to be below ground, but the safeguards we’ve put in place I believe exceed what’s in place elsewhere.”
Dupree begs to differ.
“The 100-year floodplain hasn’t been protecting people’s homes during floods, so how is it going to protect all of these open pits?” she asked. “If 100-year’s not going to, the 25-year certainly can’t.”
But the pits must be built outside of the 100-year floodplain of existing waterways anyway, Rao said, and the commission is in fact studying the possibility of requiring that all waste be kept in closed tanks, eliminating open pits. They just weren’t able to corral all the necessary information to make a decision before their deadline for this go-around, he said.
“Those [floodplain concerns] are the kinds of things why I sort of lean toward above-ground,” he said, “but we have to make sure they’re safe because you have a body of water sitting in a container above ground — you want to make sure it’s secure.”
The rules aren’t static, he emphasized, and there will be plenty of time to study the issue and recommend any necessary changes before any company has time to do enough exploring to decide whether investment in North Carolina shale gas is even feasible.
That’s not an argument Asbill buys.
“I think that before writing a rule that they already acknowledge is inadequate, they should take the time to study it and get themselves a longer deadline,” she said. “I don’t think that the people and wildlife of North Carolina are an experiment.”
Increased setbacks from water
The new rules drastically increased the distance that wellheads, pits, tanks and production facilities had to be from rivers and municipal water sources. Fracking opponents were pretty unhappy with the setback requirements proposed in the original draft, which would require that oil and gas facilities be only 200 feet away from streams, rivers and wetlands and 650 feet from occupied buildings and drinking wells.
The revised rules kick the setback up to 1,500 feet for rivers and municipal water sources.
That’s one of the changes Asbill referred to when she said, “The MEC did make a couple of good changes to the rules.”
“We were taken with the objections from the public that when you’re talking about municipal water supply sources, the setback was not sufficient,” Rao said.
However, the setbacks required for homes, drinking wells and smaller water bodies stayed the same, and there’s criticism that they should have been ratcheted up as well.
“North Carolina, including the region in Lee County where it’s basically ground zero for fracking, has a lot of small, groundwater-based public water systems that are still vulnerable because that setback does not include those water systems,” Morgan said.
Unannounced inspections
Energy companies will have to stay on their toes a little bit more with a rule change allowing unannounced inspections. In the original draft, inspectors had to notify the company before visiting the premises.
That revision sounds good, but it’s not good enough, Morgan said.
“That change in the language merely made it possible to have unannounced inspections,” she said. “It didn’t require unannounced inspections.”
Requiring inspections isn’t within the MEC’s jurisdiction, argued Rao.
“That is a crossover into DENR’s [the N.C. Department of Environment and Natural Resource’s] function,” he said, questioning why DENR would announce their inspections if they were allowed to come unannounced.
As to the argument that a lackluster inspection schedule is inevitable where inspections are not required and staff is limited, Rao said that technology could do a lot to send automatic streams of information to DENR, reducing the need for on-site visits.
“When I left Halliburton eight years ago, I swear at least 70 percent of all the fracturing jobs were monitored and controlled remotely,” he said. “Don’t think that monitoring requires that people go all the time. That is old-fashioned.”
What’s not there
The revised rules don’t address the air pollution that comes from drilling, impacts to wildlife or forced pooling, which refers to whether a property owner could be forced into signing a mineral rights lease if a certain percentage of his neighbors already have.
According to opponents of the rules, those are gaping holes without which development can’t responsibly go forward.
“There’s no requirement in the rules about the roads and the wellpads that have to be built for each drilling unit and what effect that will have on wildlife habitat,” Asbill said. In other states, such as Colorado, full wildlife studies have been required before fracking could occur, she said.
“A lot of the public comments dealt with the lack of air pollution rules, and still the MEC and the Rules Review Commission has passed their rules without any air emission regulation,” Morgan said.
But these areas are not within the MEC’s purview, Rao said.
“It’s a very strange thing, this whole thing,” he said. “It’s all new to me, but you can only do what you are directed to do by the Legislature.”
The MEC can advise, though, so one of its standing committees is going to look into what kinds of air quality rules it should recommend the Environmental Management Commission to adopt, Rao said.
What’s next?
From here, the rules will enter into a waiting period with the beginning of the legislative session Jan. 14. Legislators will have 30 days to introduce a “disapproval bill” opposing any specific rule, and the Legislature will have 30 days from the date of filing to take action, according to Asbill. If no disapproval bill is passed, or if no action is taken by the deadline, the rules will automatically go into effect. The first drilling permits can be issued 60 days after the rules become effective.
That’s a different process from the one outlined in the 2012 law, called the Clean Energy and Economic Security Act, which resurrected the Mining and Energy Commission. That law makes it clear that no permits can be issued “until the General Assembly takes legislative action to allow the issuance of such permits.” The 2014 Energy Modernization Act, introduced with Senate Bill 786, changed that.
“That final approval was part of the set of promises made in 2012, so it was another promise that was broken with 786 to the public,” Morgan said.
But the revised rules aren’t set in stone.
“I don’t consider the rules to be static,” Rao said. “I consider the rules to be the best you can do at the time, because we felt we should meet the deadline.”
He sees the rules as “the most thoughtful in the country,” “borrowing from the best” of what’s already enacted in other states. But while he admits that there’s room for revision, especially where the open pits are concerned, he has no qualms about the protections afforded by the set in place now. And anyway, there’s plenty of time to make the revisions necessary before anything gets fracked in North Carolina.
“Even if the permitting happens in the spring like some people are saying it will, you’ve still got a long time between now and when any building will really happen,” he said. “I don’t see the prospects in North Carolina interesting enough without more exploration being conducted, and exploration does not involve fracking.”
To fracking opponents like Morgan and Asbill, though, that’s like a high-stakes gamble in a game without a winning number. Even the strongest rules in the country, they say, can’t make up for the dangers to air, water and soil posed by fracking.
“I just really don’t feel like fracking makes sense for North Carolina,” Morgan said.
The revised rules are online at portal.ncdenr.org/web/mining-and-energy-commission under the link “Oil & Gas Rules Submitted to RRC.”
What is fracking?
Fracking involves injecting a combination of water, chemicals and sand to prop open cracks in rocks below the surface, allowing any oil or gas the rocks contain to flow into the wellbore and up to the surface.
In the last couple decades, it’s been combined with horizontal drilling to create wells going as deep as 2 miles before turning to proceed horizontally through the hydrocarbon-bearing formation. Fracking then commences in this long, deep wellbore, allowing previously unrecoverable fossil fuels to make their way to tanks and pipelines.
The marriage of these techniques has caused fossil fuel production to surge in the United States, along with questions about the method’s safety.
Mining Commission lands in court
A lawsuit filed earlier this month contends that the N.C. Mining and Energy Commission — the body responsible for writing rules to govern oil and gas development in North Carolina — is unconstitutional. It seeks to render the rules the commission wrote invalid.
The suit, filed Jan. 5 in Wake County Superior Court by the Haw River Assembly — a water quality advocacy group based in Chatham County — alleges that because the majority of the members of the rulemaking body were appointed by the Legislature, the appointments violate the separation of powers outlined in the state constitution. Of the Commission’s 13 members, five were appointed by Republican Gov. Pat McCrory and eight were appointed by the General Assembly.
“The composition of the MEC represents a usurpation of power by the legislature,” the suit reads.
Seven members of the MEC, all of whom were appointed by the Legislature, are named as defendants in the suit, as is the MEC as a whole, the N.C. Department of Environment and Natural Resources and the State of North Carolina. Haw River Assembly and Keely Puricz, a Lee County resident whose neighbor has signed a lease with a mineral company, are the plaintiffs. The Southern Environmental Law Center is representing them.
