how ‘best’ to frack maryland

June 9, 2013

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The Youghiogheny Overlook from I-68 might some day offer a view of drilling rigs.

Ready or not, best practices for fracking in Western Maryland will probably be released this week.

Decidedly not ready, according to four of the 15 commissioners on the Marcellus Shale Safe Drilling Initiative Advisory Commission, who have argued that the release is premature. Last month, the four – Paul Roberts, Nick Weber, John Fritts and Delegate Heather Mizeur –complained in a letter to Gov. Martin O’Malley that recent advisory meetings have been called hastily. Commissioners therefore “had little or no opportunity to review and consider best management practices material for several meetings, resulting in subpar discussion and piecemeal conclusions to many of the issues before us.” A fifth commissioner, attorney Harry Weiss, expressed similar concerns about the rush to release the report on best management practices (BMPs) but didn’t sign the letter. Four of the five missed the most recent meeting, May 17, in part, they said, because they hadn’t had sufficient time to review the lengthy and technical report.  

On the same day, a coalition of groups – CitizenShale.org, Chesapeake Climate Action Network, Maryland Environmental Health Network, Earthworks, Environment Maryland, Clean Water Action and Food & Water Watch –  sent a letter asking the directors of the Department of the Environment (MDE) and Department of Natural Resources (DNR) to delay until October release of the best practices. “Commissioners were chosen for their expertise and experience, yet in our view they are not given the time or the full opportunity to advise the agencies,” leaders of the groups said in a letter. The coalition also asked for details about how the state would undertake a “risk management analysis” to determine if fracking could be done safely. Several commissioners’ frequent questions about a formal risk assessment study have been left hanging.

Roberts said he recently “received assurances that deciding the scale of the [risk assessment] study was the next major priority.” The pressure from the letters, however, yielded only an extra few weeks to study the BMPs, and additional time to review the proposal is unlikely. At a meeting tomorrow (June 10) in Garrett County, commissioners will have a final look at the best practices that MDE and DNR drafted based on a 173-page report developed by Drs. Keith Eshleman and Andrew Elmore from the University of Maryland’s Appalachian Laboratory at the Center for Environmental Science. 

Once the plan is released, the public will have 30 days to submit comments. The release of the draft BMPs does not mean the commission or state is giving the nod to fracking in Maryland. “That decision is not being made now,” Chairman David Vanko rather uncharacteristically said at the May 17 meeting, perhaps in a gesture to the dissenters. “A lot of pieces have to fall in place before we are even close to making that determination,” including the health, economic and climate studies.         

At least Maryland is not going the way of the Illinois legislature, which just approved fracking regulations drawn up in a back room by lawmakers and representatives of industry, labor and a few big environmental groups. Illinois opted to skip those pesky and time-consuming health and economic studies and public hearings. 

As Marylanders evaluate the best practices for our state, we should at the very least hold the gas industry to its apparent endorsement of strong state regulations. At a hearing last week before the U.S. Senate Energy and Natural Resources Committee, industry executives repeatedly encouraged the federal government to back off and let the states do their work. 

  • Jack Williams, president of XTO Energy, a wholly owned subsidiary of ExxonMobil Corp., heralded industry’s “commitment to operational integrity and effective risk management.” According to Williams, “Strong regulations at the state level protect health and the environment and provide the public confidence that these operations are done right.” (ExxonMobil’s disastrous pipeline break in Arkansas has been in the news of late. In addition, XTO is the subject of a class-action lawsuit involving injection wells for fracking waste in Arkansas. Residents claim “permanent trespass” from XTO’s practice of injecting waste underground without informing or compensating landowners.) 
  • Marc Edwards, senior vice president at Halliburton, insisted the debates about fracking had been “clouded by misinformation and false assertions.” He said that “state regulators are extremely knowledgeable about the geologies within their borders” and that “their local knowledge gives them an accurate understanding of environmental risks. They tailor their regulations to local conditions.”  (Halliburton is infamous for the loophole of the same name that exempts fracking from regulations under the Safe Drinking Water Act, the Clean Water Act, and other federal laws that protect water and air.) 
  • Clay Bretches, a vice president at Anadarko Petroleum Corp., said his company “supports and recognizes the need for effective state-based regulation, similar to that which exists in Pennsylvania and Colorado.” (Back in Pennsylvania, though, environmentalists and some lawmakers are pleading with the state’s regulators to stop Anadarko from drilling in Loyalsock State Forest. Anadarko owns the mineral rights, and the state Department of Conservation and Natural Resources is not sure it can limit access. Hundreds packed a hearing last week in Lycoming County to “keep it wild.”)
  • David Porges of EQT echoed the sentiment:  “The states are best-situated to regulate oil and gas activities” because they have “localized knowledge.” (EQT, along with Chevron Corp. and a few others, helped form the Center for Sustainable Shale Development, which endorses voluntary standards for fracking.)

Given the outpouring of support for state oversight, it’s curious that the drilling industry fights state and local regulations at every turn. At the shale advisory meetings in Maryland, the industry representative is Jeffrey Kupfer, a senior adviser with Chevron. He repeatedly labels as “unrealistic” or “unfeasible” proposed best practices. (Bloomberg news reported yesterday that Chevron was named in a lawsuit by six families in Pennsylvania who say that fracking for natural gas has ruined the “quiet use and enjoyment” of their homes. The families are seeking damages because of the toxic chemicals, noise and odor from nearby gas wells.)

The centerpiece of the state’s proposed BMPs is to require companies to submit a five-year Comprehensive Gas Development Plan before getting a permit to drill. This plan will have to include location of well pads, roads, pipelines and all other facilities, although it won’t have to spell out the sequence of drilling. The company will have to present the plan at a public meeting that includes landowners, non-governmental organizations, government officials and others. 

But Kupfer said on a conference call line at the most recent meeting: “From my standpoint, making it mandatory – and even a five-year development timeline – is something that is frankly not feasible for operators to comply with.” Often some experimentation is involved with drilling, he said. If the company has leased 10,000 acres and acquires another hundred, is a new plan required, he wanted to know. The plan might also indicate that the company is missing a crucial piece of land, and the landowner might then hold out for more money. If 3,000-foot lateral drills were planned but had to be changed to 4,000-foot, does that require a new plan? And what criteria would DNR use to approve a plan? (A good question.)  “I just think it’s a nice concept,” he said, but “as a practical matter, I just don’t think this is workable.” 

Brigid Kenney, senior policy adviser at MDE, said it would be in the company’s best interest to be as complete as possible in the five-year plan. As for driving up the cost of land, she said, “That is a risk a company takes whenever it submits an application.” 

Chairman Vanko suggested flexibility could be built into the requirements – because a company wouldn’t want to be locked into having said one thing and then doing another. 

Kupfer agreed, saying people often accuse a company of not acting in good faith. But “It’s just the way things work.” Ultimately, he said, “there would be a real reluctance for any company to go forward along these lines.” 

How about disclosure of chemicals before drilling?  Commissioner Clifford S. Mitchell, M.D., director of the state’s Environmental Health Bureau, broached a “radical question”: forbidding the use of trade-secret chemicals for fracking in the state. Although these formulas are constitutionally protected, the state could stipulate that no trade-secret chemicals be used. “I’d like to put that out there” for discussion, he said. “If I feel strongly about anything, [it] is we should take a very strong stand against allowing trade-secret shields.” 

Commissioner Shawn Bender, a division manager at the Beitzel Corp. in Garrett County, said that approach would prohibit the use of Halliburton’s secret “food-grade” combination. 

“If I had to trust Halliburton, I’m not sure I would feel very comfortable about that,” Mitchell said. “As a clinician, I need to absolutely know . . . . If I am treating somebody, I absolutely have to know what the identity is . . . . I feel strongly” about that, he said.  

The draft says the state will require disclosure of chemicals; a company claiming trade secrets would have to divulge the information to MDE for review and so that it could be released to medical personnel if necessary. 

“As a practical matter,” companies don’t know what chemicals will be used at the time of the permit, Kupfer said.  

So, the state has come up with draft BMPs, based on research from the University of Maryland, but the regulations are always just too onerous for industry. 

Critics have questioned why the state is spending time and money developing BMPs before the required health, economic and climate studies. In particular, the BMPs ought to reflect the conclusions from health and climate studies. How, for example, does the state determine setbacks or other regulations without assessing risks? The draft seems more interested in making sure the shale gas is still accessible with the required setbacks than whether they offer meaningful protections.  Are even the best BMPs up to the job of protecting endangered species and fertile soil, children’s health and breathtaking vistas, livestock, pets and wild animals, rivers and wells, and a climate in turmoil?  

But the executive order setting up the study commission said the first report would be on best practices. All other studies and public review must be completed by August 1, 2014, when the executive order expires and the temporary moratorium goes away. Possible? We’ll see. At that point, though, whether the state truly intends to protect Marylanders from the hazards of fracking or whether the commission’s work was a charade will be apparent.   

–by elisabeth hoffman

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