Important and Timely Information for Members

MDEQ Proposed Fracking Rules:

 How to Submit Written Public Comments and Attend Public Hearings

The MDEQ has set dates and locations for two Public Hearings on changes it is proposing to rules governing high volume slickwater hydraulic fracturing (HVHF). Under the Michigan Administrative Procedures Act, agencies such as the MDEQ are required to hold hearings and also invite written comments from the public whenever it writes new rules or changes old ones. This is our only opportunity to weigh in on the rule-making process.

The public hearings will be held:

July 15, 2014, at 6:30 to 9:30 p.m. at the Treetops Resort, 3962 Wilkinson Road, Gaylord, Michigan 49735

July 16, 2014, at 6:30 to 9:30 p.m., at the Lansing Center, 333 East Michigan Avenue, Lansing, Michigan 48933.

The proposed rules can be seen on the web here:

http://www7.dleg.state.mi.us/orr/Files/ORR/1298_2013-101EQ_orr-draft.pdf

The changes to the rules proposed by MDEQ certainly will not make HVHF safe because it is a dangerous industrial activity conducted in the open air and through soils and groundwater, but some of the changes are at least baby steps in the right direction.

If the MDEQ conducts these Public Hearings as it has conducted others, there will be only 2 or 3 minutes allotted to each person with no certainty that the length of the hearing will be sufficient to allow each person to speak. Therefore, if you attend, it is important that you bring a written comment to submit. If you do not attend, MDEQ will accept written public comments that are received by July 31, 2014. Comments can be sent electronically or by regular mail to:

 Office of Oil, Gas and Minerals

Michigan Department of Environmental Quality

P. O. Box 30256

Lansing, MI 48909-7756

DEQ-FrackingRules@michigan.gov

*this e-mail address is case-sensitive

 On the MLAWD website Resources page (www.MLAWD.org)  is a comment jointly submitted by six organizations that are concerned with one or more of the many environmental problems created by HVHF. The groups did a great job identifying infirmities in the highly technical provisions, and also identifying additional areas in need of regulation that are not included in the proposed changes. However, the joint comment is silent as to needed regulations to address significant air pollution and degradation of air quality due to escape of methane and heavy use of massive diesel engines on and off drilling pads. Therefore, MLAWD encourages you to include this area of needed regulation in your comment.

The groups are: Anglers of the Au Sable, Michigan Environmental Council, Michigan League of Conservation Voters, Michigan Trout Unlimited, National Wildlife Federation and Tip of the Mitt Watershed Council.

You will see that the rules, proposed changes and comment by these organizations are highly technical. That does not mean that your comment also must be technical. Following is a distillation of some of the points raised by these groups.

 Well Spacing:

One of the rules changes deals with spacing requirements between drill bores. The six groups point out that the proposed change actually waters down existing requirements rather than makes them more stringent. Drill spacing is important because without proper distances there can be “interference” between well bores when one is fractured. This is extremely dangerous.

 Acidizing Wells:

The process of “acidizing” a well should also be subject to the rules because, as the six groups point out, the same or similar hazardous chemicals are used, and the process poses similar risks.

 Trade Secrets:

Claims of “trade secrets” shield companies from having to disclose precisely what mix of chemicals they use at any given site.  The proposed rules contain no definition, criteria or standard that would constitute what does or does not qualify as a trade secret which is necessary before there could be any meaningful regulation.

  High Volume Water Withdrawals:

Similarly, in the context of approving high volume water withdrawals, the rules recite the phrase “environmentally sound and economically feasible water conservation measures”. However, the six groups point out that no such conservation measures have been identified as applying to the oil and gas industry. Therefore, this also appears to be a toothless standard.

Rules involving contingency planning should include the requirement that if nearby residents begin to experience water well failure, there should be a requirement that high volume water withdrawals must stop or an alternative drinking water supply must be provided.

The MDEQ has come under criticism for using computer software (Water Withdrawal Assessment Tool) to permit high volume water withdrawals. This software was not designed for the purpose for which the MDEQ is using it, and it has not been updated as recommended by the designer. The six groups urge that when there will be cumulative withdrawals of more than 5 million gallons of water, the MDEQ must conduct site specific assessments and monitoring on the ground to evaluate actual impacts to streams, wetlands and water table levels.

 Baseline Water Testing:

The proposed rule that would require baseline testing of groundwater needs much improvement. It should not be limited to groundwater but must also include surface water, streams, lakes and wetlands because there is routine spillage of hazardous substances on the surface.  Sampling must not be limited to just a ¼ mile radius from the drill pad. Also, language must be clarified to require that samples must be taken before drilling begins, that standard protocols accepted by the scientific and legal community must be followed, that testing must also occur after fracturing, and a shorter time period must be set for the companies to release results of testing to the public. Importantly, the new rule also must require testing for a broader range of substances than just BTEX, TDS, chloride and methane.

 Notice to First Responders:

A proposed rule includes some notice to area first responders but the rule is limited to wells where drillers expect to run into hydrogen sulfide. Earlier notification as to all wells that covers all activity must be included; there are also serious risks involving storage and transport of chemicals that the rule also does not touch on.

 Outlawing Flowback on Roads:

After the infamous MDEQ approval of spreading flowback on roads for dust control, the agency issued a directive prohibiting this practice. The agency directive must be included in these formal rules to insure that it would be harder to rescind it.

 Disclosure of Chemicals:

There are provisions proposed for disclosure of some of the chemicals companies use, but the rule as presently drafted is unacceptable. Among other things, the six groups recommend that public disclosure occur before fracturing begins so that nearby residents can test their water wells to establish baseline water quality and so that first responders know what they will face if an emergency situation develops. The groups also strongly urge the MDEQ to require disclosure on a government website rather than on the informal site known as FracFocus.

 Additional Reforms Needed

The six groups identify other areas where regulation is inadequate or absent and is needed to protect the environment and the general health, safety and welfare: management of wastes; fees and financial assurances; leasing and production on sensitive or high value lands, public participation and transparency, seismicity (earth quakes), and traffic management and other protections for local communities and ecosystems.

 


Please submit a comment and, if possible, attend one of the Public Hearings so the MDEQ knows that the public is watching this rulemaking process. Please also pass this along to friends, co-workers and family members, and encourage them to submit their own comment.

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Letter to the Editor

Oil and gas companies are keeping a big secret from local land owners. They have quietly purchased new oil and gas development leases covering vast areas of Allegan and Barry Counties but because there is no law requiring them to record their leases at Register of Deeds Offices, many have not. This leaves homeowners in the dark about the status of land surrounding them. When leases are not recorded, title searches cannot show their existence. This is very convenient for oil and gas companies because secrecy prevents citizen opposition to their plans.

For almost all of us, our homes are our biggest investment. Not surprisingly, studies show that oil and gas development reduces the value of nearby properties because it is a heavy industrial use of land. Reduction in land values will also reduce local property tax bases, generating less revenue for the needs of townships.

Michigan law also does not require that notice be given to adjoining private property owners when companies apply for permits to begin drilling. That too would be inconvenient.

It is time for our legislators to become a little less cozy with the oil and gas industry and a little more concerned about the average home owner. At the very least our legislators must require companies to record their leases, and require the Michigan Department of Environmental Quality to provide individual notice to adjoining land owners as soon as companies apply for permits to drill.

(This was sent to the Allegan News and the Barry County newspaper.)

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Oil and Gas Development Needs Citizen Monitoring

Outdated information and misconceptions fostered by public relations firms hired by gas and oil industry firms who work hand-in-hand with Michigan regulators are allowing some people to believe there is little or no risk involved in extracting hydrocarbons using new technologies.  But the fact is that there are (and always have been) releases and significant risks associated with oil and gas operations.  The air pollution, hydrologic impacts, spills, waste, and leak risks from these operations are real and should be a focus for citizen vigilance.

Citizen vigilance has always been a cornerstone of environmental regulatory structure.  We hear a lot of things from the public relations firms hired by the oil and gas industry and our state regulators.  The rosey outlook put forward does not reflect full disclosure of the risks of extraction operations.  Rather, they are industry talking points.  Along with our Allegan and Barry County neighbors, we should all educate ourselves and pay attention to activities in our communities.  We should not look the other way and tell ourselves the government will take care of it.

We might expect to see more exploratory oil and gas activity in our rural neighborhoods in the near future.  A company doing seismic testing on our rural roads might soon apply for a permit to drill.  Ask yourself if a well on this location makes sense from a human health or environmental standpoint (you don’t have to be an expert, just have plain old common sense).  Control of hydrocarbon extraction operations is not as tight as the industry would like us to think.  If they put a well in your township, what or who would be affected down wind, downstream, or down the hill?

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Let’s Talk Water

More than 15 million people live within one mile of an oil well that has been drilled since 2000.  We know that the Great Lakes provide about 20% of the world’s fresh water.    Oil and gas has leased 84,000 acres of national forest along the Great Lakes and much more inland.  These waters and others are being threatened, so the importance of our fresh water cannot be overstated.

Some say that there is no proof that fracking is harmful.  I will name a few proven incidents that provide reason for great alarm.   Steve Lipsky in Parker County, Texas and others have complained of methane in their water since 2010.  News 8 recently reported that scientists have proven through isotopic analysis that fracking is to blame for the methane contamination of the Lipsky’s well.   The Texas regulatory agency continues to use the “deny and delay” tactics to enable this practice to continue.

In August 2013, an Analysis of Fish from Acorn Fork Creek, Kentucky Exposed to Hydraulic Fracturing Fluids Release, found that a major fish die off was due to a surface spill of hydraulic fracturing fluids into a stream.

Shale gas is a black hole for water use.   The Environment America Research and Policy Center reports that in 2012, 280 billion gallons of toxic wastewater were generated by fracking.  Michigan still holds the record for the largest amount used for a single well- 21 million gallons.  The DEQ has put permits into company hands allowing extraction of many billions more.

We know that there are many chemicals added to the water to assist in the fracking process.  Let’s talk about one – benzene.  We already know benzene causes leukemia.  Do we really want to wait 20-30 years for another study to show that when benzene is used in fracking that this also can cause leukemia?

Did you know that just because state land is classified as ‘nondevelopment’, this doesn’t protect it from the effects of fracking?   Roads, traffic, tanks, water well drilling, pipelines and other industrial infrastructure are allowed on this land that is subject to leasing.  Oil and gas companies state that the state and state regulators should have control over where they drill, but it seems like a conflict of interest with the MDEQ making millions for the auctioning of these mineral leases.

We are being asked to trust companies that have been accused in Michigan of racketeering and fraud.   So far State and Federal leaders have either passed the buck or exempted them from regulations that were once in place.  According to a recent survey by University of Michigan, a majority of Michigan residents would support a moratorium on additional fracking until more is known about the possible risks.  Let’s not waste any more time and water.

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MLAWD Legal Update

Michigan Land Air Water Defense has been busy.  We analyzed the recent ruling by Allegan County Circuit Court Judge Margaret Bakker which granted the MDNR’s Motion for Summary Disposition of our complaint that challenged extensive oil and gas leasing in the Allegan State Game Area.  We concluded Judge Bakker made her decision on the basis of what the judicial system calls “genuine issues of material fact.”  Michigan law allows such disputes about facts of a case only after a full trial, not at this pretrial stage.

For instance, Judge Bakker made a factual finding that the classification of leases known as “nondevelopment” prevents any surface disturbance of the land.  However, we presented evidence that this classification prevents only the placing of drill pads, and does not prevent extensive disturbance and destruction by the construction of roads, pipelines and other substantial infrastructure necessary to service the drill pads.  We also established disputed questions of fact concerning precisely what recourse concerned citizens might have to oppose drilling permits that the MDEQ grants after the leases are sold.

Therefore, two weeks ago MLAWD’s attorneys prepared and filed in Judge Bakker’s court a Motion for Clarification and Reconsideration and a Motion to Correct the Record and Material Findings of Fact.  Our attorneys also brought to Judge Bakker’s attention the fact that, shortly following her decision, the MDEQ ruled that Kalkaska County property owners who live adjacent to land for which Encana has applied for permits are not interested or aggrieved persons, and therefore, lacked standing to oppose its permit application process.  The Attorney General’s office also represented the MDEQ there, and may have made arguments that were not consistent with arguments made before Judge Bakker in our case.  Even so, Judge Bakker denied our motion.  She could have held a hearing on the legitimate questions we raised but, instead, Judge Bakker summarily denied our Motion for Reconsideration.

We believe an appeal of this decision is beyond our reach financially and, in any event, may be futile.  The fight in the courts we started almost two years ago to vacate state-auctioned oil and gas leases on public land in Barry and Allegan counties is over, but our fight to protect these magnificent lands certainly is not.  Your continued steadfast support is needed more than ever as we turn our attention to opposing permit applications as soon as the companies file them.  We are also refocusing ongoing efforts to awaken public opposition to the destruction of crucial habitat and recreation areas by the oil and gas companies and by the state agencies charged with the duty to protect them.

Heartfelt thanks for your steadfast support and your care and concern for the public lands we continue to fight to preserve.  The board of MLAWD urges those of you who have been thinking of becoming more active in your support of this worthy cause to send us an email so we can give you the date, time and location of our next meeting.  

Email: milawdefense@gmail.com.

 

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Ruling issued regarding the April 10 MLAWD Hearing in Allegan Court

15 May 2014

Allegan Circuit Court Decision

On May 2, Allegan Circuit Judge Margaret Bakker ruled against Michigan Land Air Water Defense (MLAWD) in our suit against the Michigan Department of Natural Resources (MDNR) seeking nullification of state mineral leases in Allegan County.  In a hearing on April 14, the MDNR sought dismissal of the suit claiming it was premature and unnecessary.

Judge Bakker was not persuaded by our argument that the matter is ripe for decision at this stage because leasing transfers substantive property rights to the companies, finding instead that there is no “loss or injury” until and unless the Department of Environmental Quality (DEQ), a separate agency, issues permits to drill. We respectfully disagree with the Court’s analysis which, we believe, relieves the DNR from its responsibilities under the Michigan Environmental Protection Act.

Our attorney did not receive the Opinion of the Court until May 12. We now must evaluate both the strength of a possible appeal and whether or not we can hope to raise funds sufficient to carry an appeal forward. Just last week MLAWD received its 501(C)(3) tax-exempt status from the IRS which could assist in fundraising.

While we’re disappointed in Judge Bakker’s ruling, MLAWD remains committed to educating the public about oil and gas development on and under Michigan’s public lands. And will we not be dissuaded from keeping a close eye on the status of mineral leases and drilling permits in southwest Michigan.

We’ve just received this opinion; our board will decide on a course of action shortly.

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Link to Channel 3′s Tom Van Howe Editorial on Fracking in Michigan 08May2014

Here is a link to an interesting editorial from Channel 3′s Tom Van Howe.

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