The draft rules on fracking in North Carolina are rife with loopholes that favor the drillers and could endanger the public health and the environment.
At a public hearing in Raleigh last week, speakers focused on the many significant shortcomings of the Mining and Energy Commission's draft rules. The inspection protocols, recordkeeping regulations, required distances from fracking operations to homes, chemical disclosures, water issues and waste cleanup are all weak, as if the energy companies had crafted the rules themselves.
For example, the rules would require well operators to report chemicals used in their operations to state environmental officials and emergency responders, such as fire departments. But it would be illegal to publicly disclose the names of the chemicals. Anyone who leaks "trade secrets"—the chemicals—can be cited for a Class I misdemeanor. While health care professionals, fire chiefs and state agency personnel can request the information in the event of an emergency, they cannot release the information to the public, including people affected by a chemical spill or leak.
"All chemicals used should be disclosed publicly," said David Rogers, field director for Environment N.C. "There shouldn't be these broad loopholes for trade secrets. Aggregated data should be available, and that shouldn't have to be on (website) FracFocus. This rule is woefully inadequate for protecting public health."
If there were a spill, the chemicals wouldn't have far to go to affect nearby residents. The rules allow for well heads, waste pits, production equipment and tanks to be located 650 feet—about one-tenth of a mile—from houses, buildings and drinking water wells; 200 feet from waterways and 100 feet from roads. These distances are significantly less than those enforced in other states.
"This is criminal," said speaker Vicky Ryder.
Environmentalist group Frack Free N.C. is lobbying for a minimum 1,500 feet from houses and buildings, at least 1,000 feet from drinking wells and 2,000 feet from groundwater sources.
Along with the strict chemical disclosure rules, it may be nearly impossible to accurately know the nature and extent of contamination. In some cases, landowners or well owners would be required to test the water for toxic chemicals only once, six months after production has begun. And if no elevated levels of chemicals—including arsenic, barium, radium and benzene—are found in the original analysis, these chemicals don't have to be tested for again.
Then after production is completed, testing is required only once, within 30 days. There are no provisions for long-term testing after production, so slow-moving contaminants may never be detected.
If the water is found to be contaminated, the rules state that the operator has to replace the water supply, but they don't specify for how long. (In cases of severe contamination, water supplies are unusable for years.) Under North Carolina law, operators have to post a $1 million bond to cover environmental damage, a sum many speakers deemed as far too low, considering the long-term damage that could occur.
"We need to hold companies accountable for spills, leaks that poison waterways and torn up roads," said speaker Christine Carlson. "We can live without shale gas but not without clean air and water."
Fracking is a water-intensive operation, requiring millions of gallons of water per day. While this year most of North Carolina has an ample water supply because of significant rain, in 2007 a record-setting drought afflicted the entire state, and lasted for two years.
The rules do require permit applicants to report the sources of water to be used, expected average and maximum withdrawal amounts, an explanation of alternative sources, and a monitoring plan reporting daily water usage. But here's the catch: There are no penalties against operators who exceed their withdrawal limits.
"Even when the fracking operator is operating 100 percent cleanly, it is an inherently water intensive process," said speaker Ezekiel Overball.
Along with water concerns, there are serious issues with the handling and storage of the waste—some of it hazardous—from fracking operations. Operators must submit a plan for handling and storing wastewater and solid waste during drilling, but once they are finished with production, that waste doesn't have to be documented or labeled. Nor is it clear where millions of gallons of fracking waste will be contained. That could be open pits, like those currently storing coal ash. As the state has learned from the Duke Energy coal ash spill, pits release toxic emissions, are prone to flooding, can leak into water supplies and harm wildlife. There are no provisions banning storage and waste pits on hills, even if they are at risk for landslides.
There are no requirements for groundwater monitoring, and spills of less than one undefined "barrel" of waste don't have to be reported, potentially allowing an unlimited number of spills per day.
Even finding a violation could be difficult. The rules allow the N.C. Department of the Environment and Natural Resources staff to notify oil and gas operators before reviews and inspections. This would be comparable to health inspectors telling a restaurant when they will visit.
"No reasonable person would say announced visits give an accurate picture of a drilling site," said Hillsborough Town Board member Jenn Weaver.
What's omitted from the rules is as important as what's included. There is no mention of air quality and emissions monitoring, the prohibition of local governments to regulate fracking within their borders and forced pooling. Also known as compulsory pooling, this practice gives states the right to compel a non-consenting landowner into a mineral rights lease. In most states, this requires that a certain percentage of surrounding land already be leased, according to the Rural Advancement Foundation International, which has worked with landowners in North Carolina to protect their property and mineral rights.
"Having no control, having my authority as a landowner usurped because some people in the drilling unit agreed to it incenses me," said speaker Jonathan Sheline. "It goes against property rights in general."
This article appeared in print with the headline "Ask for water, get gas."