* IDNR released its new fracking rules today. Lawrence Falbe took a quick look for us…
My take on the revisions is that IDNR seems to worked very hard to digest an enormous body of public comment, and revise the regulations as it saw necessary and appropriate. I think that few people will be able to argue that IDNR rushed the process or otherwise did not fairly consider the staggering volume of comments it received, even if the end result is not considered perfect by either pro- or anti-fracking proponents.
Here is my “quick hit” list of what I saw that was important in my first very quick run-through.
• Requirement to disclose specific fracking chemicals is strengthened and burden to prove protection as a trade secret is more stringent
• Radioactivity is now addressed and a Radioactive Materials Management Plan is now required, among other things
• The carve-out for adverse effects to water bodies that are “wholly contained” is much more stringent, with any hydrogeological connections to off-site groundwater sources now enough to exclude this caveat
• The permit applicant must identify efforts to mitigate the impact of HVHHF on local roads
• Burden is on the applicant to show if local first responders have adequate training and equipment to respond to emergencies
• Changes to the permit application to address deficiencies identified by IDNR may trigger a new public comment/hearing period on those changes
• Tightens up rules for when an objector can demand a public hearing by requiring specific facts and regulations at issue to be identified, but softens requirement to identify witnesses at time of request for public hearing
• Public hearings must be held WITHIN THE COUNTY of the well site when possible but in no event more than 30 MILES OUTSIDE of county of well site
• Applicants MUST appear at the public hearing (if there is one) except in a case of documented emergency, in which case the hearing can be rescheduled but applicant must pay costs
• Clarifies that Hearing Officer does not render a “decision” but now makes only recommended findings, and the IDNR (presumably the Director but it’s not specified) makes the decision.
• The permit decision still has to be made within 60 days of application completion unless waived by the applicant
• The standard for granting a permit now specifically includes consideration of potential harm to property, wildlife, aquatic life and the environment
• The IDNR has to make specific findings in its permit decision on key input from governmental agencies and objectors that was presented by public comment/hearing
• The permit decision must consider the incremental impact and CUMULATIVE EFFECT of past, present and future fracking operations in the same vicinity or county
• Significant deviations to the original permit application (including changes in well dimensions, boring locations, changes to proposed containment, etc.) requires another $13,500 fee
• IDNR can impose ADDITIONAL SETBACKS as necessary to protect public health, public safety, property, wildlife, aquatic life, or the environment
• Baseline groundwater monitoring requires GPS coordinates
• Burden for claiming technical or economic infeasibility of complying with requirements to manage natural gas and hydrocarbon fluids produced during flowback periods is more stringent
• Excess fluid in a reserve pit must be removed within 7 days after it is deposited
• SITE Restoration is MANDATORY and cannot be contractually waived between site owner and permittee
Note that the new requirement that a well permit application decision must consider incremental impacts and “cumulative effects” (Section 245.300(c)(4)(vii)) is HUGE and could have a major impact on incentivizing companies to rush to get permitted, for fear that an overabundance of wells in a certain area may make additional permits harder to get as time goes on.