HBW’s Bo Ollison State Fracking Report: March
A number of states, and their regulatory agencies, are currently evaluating the use and benefits of hydraulic fracturing (HF).
- Rep. Lee Terry (R, NE) and Ed Whitfield (R, KY) are working on a bill that would give states sole oversight of HF in hopes of promoting gas as a transportation fuel in heavy duty trucks. The measure is targeted at providing the oil and gas industry with the certainty that can attract investments by heading off questions from multiple federal agencies, particularly the EPA.
- The State of California is examining Governor Brown’s proposal to regulate HF. Many outside organizations and elected officials have expressed their concern that the proposal does not go far enough in requiring the disclosure of the chemicals. Even with the state working on the proposal, the South Coast Air Quality Management District, which regulates air quality in Southern California, has recently drafted its own proposed rule 1148.2 and is scheduled to vote on the proposal on April 5.
- Cities within the State of Colorado have also been very involved in the HF debate. This past November, the City of Longmont voted to approve Ballot Question 300, which amended the City’s home rule charter to prohibit fracking within its boundaries. The ban is being challenged in court. The City of Fort Collins also is considering banning fracking within its city limits. At a December 18, 2012 council meeting, a second reading of Ordinance No. 145, 2012 which would establish a moratorium on the acceptance or processing of land use applications, permit applications and other applications seeking approval to conduct oil and gas extraction or related operations within the City, was approved 6-0. At the February 19, 2013 Council meeting, the Council approved by a vote of 5-2, Resolution 2013-012, which The first one states that the “Governor and Attorney General support the General Assembly in enacting legislation that will explicitly grant Colorado home rule cities broad regulatory powers over oil and gas exploration and production within their municipal boundaries.” The second one states, “that the City Council hereby supports the City of Longmont in its litigation with the State of Colorado concerning the power of home rule cities to regulate the exploration for and production of oil and gas development within the boundaries of the City of Longmont.” The final section states, “that the City Council hereby expresses its intent to negotiate with the Board of Commissioners of Larimer County for the establishment of County regulations of oil and gas exploration and production outside of the City but within the Fort Collins Growth Management Area.” A second resolution, 2013-011 which stated, “The Council of the City of Fort Collins that the following question, in substantially the form shown below, shall be submitted to the registered electors of the City of Fort Collins at the general municipal election to be held on April 2, 2013: Shall chapter 12 of the code of the City of Fort Collins be amended by adding a new article VII Health and Environment to prohibit within the Fort Collins city limits the use of hydraulic fracturing to extract oil, gas, or other hydrocarbons, and to prohibit within the Fort Collins city limits the storage in open pits of solid or liquid wastes and/or flowback created in connection with the hydraulic fracturing process, and excepting from these prohibitions any oil or gas well or well pad site that existed within the City as of February 19, 2013, provided that the operator of such well or pad site enters into an agreement with the City that specifically imposes strict controls on any methane released in connection with such operations and that, in the judgment of the City Manager, adequately protects the public health, safety and welfare?” was not considered. Colorado Governor Hickenlooper stated in a recent interview with CBS4 that the state will sue any local government that bans hydraulic fracturing.
- In the state of Indiana, Rep. Matt Pierce (D, 61) has introduced House Bill 1209, which has been referred to the House Natural Resources Committee. The bill is an environmental review of hydraulic fracturing. It requires an owner or operator of a well for oil and gas purposes to submit an environmental compliance plan to the department of natural resources for review and approval of the plan before performing hydraulic fracturing. The plan needs to contain certain information, including the chemical constituents to be used in the hydraulic fracturing, a description of the geology of the area where the well is located, and a pollution risk analysis. The bill does provide that proprietary or trade secret information need not be disclosed in the plan. The Department is required to publish approved plans on its website.
- The State of Illinois House introduced HB 2615, Hydraulic Fracturing Regulatory Act which would prohibit high volume horizontal hydraulic fracturing operations performed without a permit. Regulates where high volume horizontal hydraulic fracturing operations are proposed, planned, or occurring may be located. Provides requirements for permit applications, modification, suspension, and revocation of permits, insurance, well construction and drilling, disclosures, water quality monitoring, investigation and enforcement, violations and penalties, and administrative review. Authorizes the Department of Natural Resources to adopt rules as may be necessary to accomplish the purposes of this Act. Amends the State Finance Act. Creates the Mines and Minerals Regulatory Fund. The bill was sponsored by Rep. John Bradley (D-Marion) and Rep. David Reis (R-St. Marie) and has the support of a wide range of organizations, including the Illinois Manufacturing Association, the Illinois Petroleum Council and the Illinois AFL-CIO. A bill sponsored by Sen. Mattie Hunter (D-Chicago), Senate Bill 1418, seeks to impose a two-year moratorium on fracking in Illinois.
- The Allamakee County Supervisors in Iowa unanimously voted to approve a temporary moratorium on the mining of frac sand. The moratorium will allow the Planning and Zoning Commission to study the potential impacts of frac sand mining and to make corresponding amendments to the County’s zoning ordinance and comprehensive plan. The Planning and Zoning Commission will make its recommendations to the County Supervisors by July 2014.
- The Maryland House and Senate will be holding hearings on a series of bills that could prohibit hydraulic fracturing and prohibit in state treatment and disposal of wastewater from hydraulic fracturing. One measure, “Maryland Hydraulic Fracturing Moratorium and Right to Know Act 2013” (SB 601 and HB1274) would prohibit the state from issuing a permit for hydraulic fracturing until certain conditions have been met. One of these measures would be the execution of a series of 14 studies, proposed by Governor O’Malley, prior to the permitting of any hydraulic fracturing activities. On February 4, 2013, the Baltimore City Council unanimously endorsed the Chesapeake Climate Action Network’s legislation before the state General Assembly that would place a moratorium on fracking in Maryland.
- The State of Michigan’s State Board of Canvassers recently approved a new petition for a six month period of signature gathering for the Committee to Ban Fracking in Michigan. The group will need to gather 258,088 signatures to get their proposal to ban fracking on the 2014 ballot. This group has already failed once to gather the requisite number of signatures to get on the 2012 ballot.
- The Senate in Minnesota is considering a bill related to silica sand mining joint powers board, SF 786. The bill was referred to the Senate Environment and Energy Committee. The bill’s chief author is Sen. Matt Schmit (DFL, 21). The bill requires the state to prepare environmental impact statements on proposed mining operations that would produce silica sands used as proppants in hydraulic fracturing.
- The State of New Jersey’s Assembly Bill 567, which prohibits the drilling technique of hydraulic fracturing, was reported out of the Environment and Solid Waste Committee. The Bill’s primary sponsors are Assemblywoman Connie Wagner (D, 38), Assemblyman Reed Gusciora (D, 15), Assemblywoman Valerie Vainieri Huttle (D, 37), Assemblyman Herb Conaway Jr. (D. 7), and Assemblyman Ruben J. Ramos Jr. (D, 33). A similar bill was introduced in the State Senate, S 246 and referred to the Environment and Energy Committee. A similar bill was passed previously, but was vetoed by Governor Chris Christie.
- The New York State Commissioner of Health is currently reviewing the draft Supplemental Generic Environmental Impact Statement proposal. On Tuesday, February 12, 2013 Governor Andrew Cuomo’s Administration announced that it would not meet a February deadline to issue a new Environmental Impact Statement which will likely require the state to start the regulatory process over and begin a new 45-day comment period. The Joint Landowners Coalition of New York has announced that it is seeking plaintiffs for its eventual suit against the State’s moratorium. Their argument is that delays to permitting for fracking over the past 41/2 years have deprived landowners of economically-viable uses of their land.
- The State of North Carolina’s Senate introduced Senate Bill 76 which would authorize the Department of Environment and Natural Resources to issue permits on or after March 1, 2015 for oil and gas exploration and development activities in the state, including the use of Horizontal Drilling and Hydraulic Fracturing treatments for that purpose. The bill was passed by the Senate on February 26, 2013 by a 38-10 vote. An April 2012 report from the North Carolina Department of Environment and Natural Resources states that fracking could pose water contamination and air pollution risks, but ultimately it concluded that the procedure can be done if the appropriate safeguards are put in place.[i]
- The Youngstown, OH city council at its February 20, 2013 meeting approved a proposed city charter amendment to ban hydraulic fracturing for the city’s May primary election ballot. Council members acknowledged that they were unsure of the amendment’s legality, as some believed that the state has exclusive authority to regulate oil and gas activity. Petition signatures for the amendment were collected by a group called “Frack Free Mahoning Valley.” The group is an off-shoot of “Frack Free America,” which has pursued “environmental bill of rights” amendments that include bans on hydraulic fracturing in municipalities across the country. Also in Ohio, the Brunswick, OH City Council at its passed a measure, Resolution 4-13, in “opposition to enactments by the Ohio General Assembly granting special privileges to the oil and natural gas industry by abrogating all local control over well permitting, which jeopardizes the health, safety and welfare of the citizens of Ohio and requests that the General Assembly repeal any and all laws that pre-empt local control over oil and natural gas extraction and associated risky industrial activity.” The measure was sponsored by Councilwoman Patricia Hanek and the vote was 6-1. A local company, PETCO a growing subsidiary of Philpott Rubber which distributes a chemical used by natural gas drillers to clean and lubricate wells claims that the passage will send a bad message to its clients and is purely symbolic since there are no natural gas wells in Brunswick and none are expected. The company had planned on expanding its operations in Brunswick, potentially creating 15-20 new jobs but is reconsidering the expansion in light of the passed resolution.
- The Utah Division of Oil, Gas & Mining Board approved R649-3-39, Hydraulic Fracturing Rule on October 24, 2012. The rule requires the amount and types of chemicals used in a hydraulic fracturing operation to be reported to www.fracfocus.org within sixty days of completion for public disclosure. This rule became effective on November 1, 2012. The State of Utah passed a concurrent resolution SCR 12 urging Congress to clearly delegate responsibility for regulating hydraulic fracturing to the states. The Sponsor of the resolution was Sen. Keith Van Tassell. The resolution was signed into law on March 22, 2012.