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Environmentalists Say New Fracking Rules Are a Mess; TDEC Says No Problem

As we reported last week, the Tennessee Department of Environment and Conservation's Oil and Gas Board was set to hold its final meeting ever on Friday, at which it planned to discuss new rules to regulate the process of hydraulic fracturing in the state. Although the board was asked to delay its decision by at least one month, to allow the newly merged Board of Water Quality, Oil and Gas to make a ruling instead, the Oil and Gas Board went ahead and, after making some of its own changes to the regulations, passed the new rules. 

So what to make of the new regulations? Well, if you're TDEC, you're apparently quite pleased with yourself. TDEC's Meg Lockhart sent me the following e-mail on Friday night:

Since you've been interested in the fracking process and proposed rule changes, I wanted to proactively send you the final outcome after today's Oil and Gas Board meeting. After a great deal of research, TDEC made its final recommendation on rules to regulate hydraulic fracturing in Tennessee at today's Oil and Gas Board meeting.  I just learned that the Oil and Gas Board made a unanimous decision to approve the rules as amended today.  I thought you could also benefit from a little background information, which I have detailed below.

The department has strived for a transparent and inclusive process in developing these draft rules, seeking out input from a variety of stakeholders as directed by the General Assembly in 2011.  These stakeholders included both environmental groups and industry representatives and TDEC worked to address concerns that have the potential to be applicable to the drilling done in Tennessee specifically. We believe today's recommendation accomplished the task set by the General Assembly in HR 98, which stated "the goal of these regulations, to be presented to the Oil and Gas Board for consideration, shall be to protect Tennessee's groundwater quality and drinking water supplies, to protect the collative rights of the land and mineral owners, and to allow for development, protection, and management of the resource of natural gas deposits." 
Fracturing, or "fracking," is common in oil and gas drilling to release hydrocarbons for production from tight formations.  It can be done with water, nitrogen, CO2 or some combination.  Wells have been fracked in Tennessee since at least the 1960s.  The advent of horizontal drilling combined with new methods of hydraulic fracturing have made huge reserves of natural gas accessible.  This change has made the issue of fracking the subject of debate in many states as regulators work to strike the appropriate balance that fully protects human health and the environment, yet does not hinder progress toward a cleaner domestic energy supply to reduce dependence on coal and foreign energy.
There have been issues with hydraulic fracturing in many other states, though it is important to note that methods used there are different from those used in Tennessee.   The Marcellus shale in the Northeast is much deeper and thicker, so the fracking process there requires large quantities of water, some of which becomes wastewater.  In Tennessee, where the shale formation is shallower and thinner, the preferred method for fracking uses nitrogen and if water is used, it is used in much smaller quantities (thousands of gallons versus millions of gallons).  Consequently this rule package includes controls for drilling practices appropriate for geologic conditions in Tennessee.
We believe these rule changes provide sound protection for the environment, while also not impairing the ability of industry to develop a domestic clean energy supply.  The rules ensure:
·       Public disclosure of all chemicals used in the fracturing process.   Large volume fractures using more than 200,000 gallons of water-based liquids must be disclosed on a public website.  Smaller fractures using less than 200,000 gallons of water-based liquids or using non-water methods would be disclosed in the well completion report, which is a public record available to the public upon request.  

·       Public notice and a 30-day comment period, as well as notice to neighbors with drinking water wells in a half-mile radius of intent to drill prior to any large volume fractures.  The driller would have responsibility to test neighbor's drinking water wells to establish baseline at the neighbor's request.

·       Structural integrity of oil and gas wells, with provisions that ensure best practices for casing and cementing to ensure the integrity of the well, so that nothing escapes into the soil/ groundwater. 
Prior to today's meeting, TDEC incorporated many changes to the final draft rules based on stakeholder input -- including lengthening the public notice period and requiring contingency plans to deal with spills or other unplanned incidents at drill sites.  We appreciate all of the input received and believe the end result to be a strong and balanced package that modernizes the state's oil and gas rules and addresses issues of concern as they have the potential to affect Tennessee.
I hope this information is helpful! 
Meg Lockhart

However, during the meeting itself, the Tennessee Clean Water Network's executive director, Renee Hoyos, had tweeted her frustration at how things were going. So I forwarded Lockhart's letter to Hoyos and asked her to repsond. Here's what she said:

I stayed until 3:30 and then had to go. The board was significantly rewriting the rules and weakening them when I left. I need to get a strikeout version from TDEC to see the damage.

The inclusive and transparent process Meg speaks of involved 2 years of meetings with enviro groups and industry.  We provided over 100 pages of comments to TDEC. All were virtually ignored.  Industry however got all they wanted and as I was leaving the board was eliminating even the tiniest gains we had made.

As for meeting the goals of the resolution, TDEC ignored our comments having to do with the APIs three hydrofracking documents dealing with monitoring, waste management plans, and a slew of other protective measures that we put in our comments. So no, I think Meg is wrong. There will be no pre or post frack monitoring. The board reduced notification for people using well water from 1/2 mile of franking site to 1/4 mile from well head.  There is no public notification for any frack using 200,000 gallons or less.  While true that we N2 frack in this state, they still use a lot of chemicals.  If someone was putting 20,000 gallons of gels and benzene products down a well near you wouldn't you want to know?  Since there will be no public notification of fracking for anything less than 200,000 and the largest frack job we've seen is 197,000, the public will never be notified of a fracking event.  The 30- day comment period is useless. You can frack a well 137x under 200,000 gallons.

The incorporated stakeholder changes Meg mentioned were industry changes. The board studiously incorporated their changes and ignored our requests.

Oh and Friday was the last day of the oil & gas board's existence.  The new board starts as of 10/1.  The old board that made yesterday's decisions has three out of five members from industry who receive a financial benefit from weak rules. We're asking for any conflict of interest documents and I can bet you there aren't any.


So there you have it. A board dominated by industry insiders votes for regulations that will protect industry more than they will protect the environment. But still, there's hope. The price of natural gas has fallen to its lowest level in a decade (partially due to the glut of fracking across the country), so it may not be economically feasible for a boom in drilling any time soon.

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