Fracking regulation comments to IDNR made by Will Reynolds, December 3, 2013
I'm going to comment on several sections, including 310 on permit denial, section 1120 on penalties and 240 and 260 on public participation.
First, I’d like to say that I have sympathy for DNR today because you've been charged with an impossible task. You've been asked to make fracking safe, as Governor Quinn promised his inadequate fracking law would do, but we all know there's no evidence that fracking can be made reliably safe. You truly have an impossible task because the best practice is to not frack at all.
We also know that fracking causes more frequent earthquakes, as several studies have shown. An earthquake doesn't care what regulations you pass. We don't know what happens when you frack in major seismic zones like the Wabash and New Madrid fault lines. That means Illinois is being subjected to a massive science experiment with hundreds of thousands of area residents being used as human subjects.
FinesMany citizens have expressed outrage at the puny fines proposed in these rules. But, there’s more cause for alarm. The section on penalties makes frequent use of the word “may.” The director of DNR or his designee may revoke permits and may impose fines. The words “shall” or “must” are conspicuously absent. This means companies with multiple violations may face little or no penalty at all.
That would not be unusual for this agency. Based on DNR’s cozy relationship with industry, and history of waiving penalties, there's no assurance that meaningful fines will be collected. Even when a fine is recommended, companies will have another chance to have it reduced or waived for a long list of easy excuses. What you're telling the public is that a multi-billion dollar industry that loses $1,000 in change between the seat cushions may not be punished at all.
Public Process
Section 240 says notices of public hearings for well permits will be posted in newspapers near the hearing site. There’s no requirement to post hearing notices online. I'd like to let the agency know that Nirvana’s first album was released over 20 years ago and that means it’s way past time to put everything on the internet.
Section 260 states the public comment period will only last 30 days, even though there’s a 60 day window to approve a permit. After a public hearing, comments can only be given on evidence presented at the hearing. That means people who find out about a proposed well after news coverage of a hearing, or after the 30 day time limit, will have no opportunity to present comments on new issues. Those restrictions needlessly make participation more difficult for the average citizen who doesn’t spend every day watching for permit filings.
In order for a public process to be meaningful, there must be a reasonable chance that the public can change the outcome of a decision. I don't see that in the rules. I see a hamster wheel that keeps people running in place, going through the motions while getting nowhere.
Reasons for denying a permit
Section 310 lists only four reasons to deny a permit. It does not list previous violations of Illinois regulation as a reason to deny a permit.
Some of us have seen how this game works before. For example, when members of the public point out that a company applying for a mine permit has a long list of violations, we’re told that old violations from other sites can’t be considered during the permitting process. There’s no accountability for past bad behavior when companies seek new permits.
The scenario we’re facing is that, at DNR’s discretion, a company may rack up hundreds of environmental violations, pay zero penalties, and still receive new permits to do even more damage. If these regulations are going to be meaningful then DNR will have to put on your big boy pants, finally stand up to industry and start saying "no" to permits for bad actors.