living with fracking
June 18, 2014
Despite frequent strong objections last week from three of its members, the state’s Marcellus Shale advisory commissioners signed off on — or voted that they could “live with” — a set of best practices for fracking in Maryland.
Here are a few practices the majority accepted or said it could live with:
- cultural and historic sites, state and federal parks and trails, wildlife management areas, scenic and wild rivers and scenic byways 300 feet (the length of a football field) from the edge of a frack pad;
- aquatic habitat (such as streams, rivers, ponds, lakes, seeps and wetlands) 450 feet from the edge of frack pads;
- irreplaceable natural areas and wild lands 600 feet from the edge of drill pads and permanent infrastructure;
- homes, schools and other occupied buildings 1,000 feet from the edge of a frack site;
- private and public water sources 2,000 feet from the drill hole (with exceptions that could allow drilling within 1,000 feet of a gas well).
The centerpiece of the best practices is the mandatory Comprehensive Gas Development Plan (CGDP), an overarching timeline and siting of “clustered drilling pads” and infrastructure. A public meeting is also part of this CGDP, giving property owners, local officials and organizations up to 60 days to comment. If your property is within 2,500 feet of a proposed drill site, you’ll be notified. No drilling would be allowed on state lands or within the watersheds of the Broadford Lake, Piney and Savage reservoirs.
The three frequently dissenting commissioners — Ann Bristow of the Savage River Watershed Association, citizen representative and farmer Paul Roberts, and Nick Weber of Trout Unlimited — had wanted to delay the best practices vote until the risk assessment and health study were complete. They asked how the best practices would be updated to reflect those reports, along with evolving science.
Roberts also asked whether a fundraising event for Gov. Martin O’Malley at the D.C. headquarters of America’s Natural Gas Alliance had any bearing on the rush to finish the best practices. Robert M. Summers, secretary of the Maryland Department of the Environment (MDE), who occasionally attends these monthly meetings, called out from the back of the small and crowded classroom at Allegany College that “the campaign is completely separate” from government offices. “So, there is no connection whatsoever.”
Weber said repeatedly that too many of the best practices, from flaring to cementing to casing, seemed to be mere suggestions urging drillers to “Do the right thing” and pointing to American Petroleum Institute guidelines. Drillers need to avoid this or minimize that, he said, and are granted altogether too much leeway. Weber, a scientist formerly with the FDA’s Center for Veterinary Medicine, has long argued that the state should develop best practices only after analyzing the risks fracking poses to human and animal health and the environment.
But that’s not how the state is proceeding.
Brigid Kenney, a senior policy adviser at MDE, said the in-house risk assessment will analyze potential harms in light of this snapshot of best practices. Based on that analysis, if a risk were still deemed too high, she said, MDE would consider additional practices. The votes, she said, will appear in an appendix to the final best practices report. “I should point out: It’s two years late already,” Kenney said of the best practices report.
The governor’s June 2011 executive order setting up the three-year study commission said the best practices were due in August 2012, but progress was slowed by lack of funding. Drs. Keith Eshleman and Andrew Elmore delivered their best practices recommendations to the commission in February 2013, and the commission, MDE and the Department of Natural Resources (DNR) have been working on them on and off since then.
Worth noting here is that the best practices will be the basis for updating the state’s regulations, which until now have dealt only with conventional drilling and mining. In fact, the state had been months away from granting permits for fracking in the Marcellus Shale under Garrett and Allegany counties under existing regulations when concerned residents raised alarms, setting in motion the advisory commission and what amounts to the state’s three-year moratorium. The 15-member commission, working (without pay) with MDE and DNR, is charged with determining whether fracking “can be accomplished without unacceptable risks of adverse impacts to public health, safety, the environment and natural resources.” That determination has not yet been made.
Jeffrey Kupfer, a fellow at the Asia Society and former senior adviser at Chevron, urged fellow commissioners to press on with the best practices votes. “This is MDE’s and DNR’s report. We play a role in this, but at the end of the day, it’s their words on the paper. It’s their report,” he said on a conference phone line. “We don’t need to push the envelope for the sake of pushing the envelope. A ‘best practice’ is something we’ve seen somewhere else and that works.”
Given the practices and accidents in other states and threats emerging in health studies, Kupfer’s definition of a best practice could fall well short of the “gold standard” to which state officials say they aspire.
But the vote commenced, with each commissioner indicating by a show of hands whether the proposed standard was 1) “appropriate,” 2) might not be appropriate “but I can live with it” or 3) “not appropriate because_______.”
VOTING ON THE CGDP
First up for a vote was the CGDP, which, Kenney said, “is the most important thing we can do to minimize impacts.” The state would require a company or group of companies to seek approval for a drilling plan covering a large area and including the location of well pads, roads, pipelines and other infrastructure.
Although the state’s goal has been to have the best practices grounded in science, Roberts said, no research demonstrates that CGDPs reduce harms. In fact, John Quigley, who oversaw similar development plans for fracking in Pennsylvania’s state forests and who produced a report for Maryland saying the CGDPs would be a win-win for the business and the environment, testified in a lawsuit last month that the impact on forests in his state had been “underestimated.”
“There are going to be impacts,” said Commissioner Stephen M. Bunker of the Nature Conservancy. He said his organization is developing a tool to determine where best to locate roads and gas lines to “minimize impact on the landscape.”
To which Roberts replied: “But as someone who lives out here, what I’m concerned about here is a 40-acre industrial fracking compound 1,000 feet from my house.”
“There is nothing showing [the CGDP] is consistently superior to other techniques,” Bristow said. The CGDP might lessen forest fragmentation, she said, but it doesn’t address threats to public health. In fact, she said, “intense aggregation [of wells] may be worse for public health.” Workers and nearby residents will be exposed to more air emissions, for example. The risk of explosion and well casing failure might also increase. “The point is that [the CGDP] is a land-use decision. It is not a public health model.” she said.
Commissioners who voted that the CGDP was an appropriate practice were: David Vanko, chairman and Towson University dean; state Sen. George C. Edwards; Pennsylvania attorney Harry Weiss; Bunker from Nature Conservancy; Oakland Mayor Peggy Jamison; Garrett Commissioner James M. Raley; and Clifford S. Mitchell M.D., director of the Environmental Health Bureau of the state Department of Health and Mental Hygiene.
Kupfer said he was a 2 — he could “live with” the CGDPs — or was between a 2 and a 3. He said he supported the idea “in principle, but my concern is the way it’s laid out here it’s not workable in practice” for industry.
Voting that the CGDP was “not appropriate” were Bristow, Roberts and Weber.
(Allegany Commissioner William R. Valentine couldn’t attend because he was assessing flood damage from several days of heavy rain in his county. Commissioners Heather Mizeur, Shawn Bender and Dominick E. Murray didn’t attend.)
BUFFERS FROM FRACKING
Voting on setbacks yielded similar split votes. The separation between the well pad’s edge of disturbance and streams, rivers, lakes, ponds, seeps, wetlands, reservoirs and 100-year floodplains would be 450 feet. Again, Bristow, Roberts and Weber dissented. “I don’t see 450 feet as protective” of agricultural uses, or for humans and other animals, Bristow said.
Of the distance protecting wildlands and other special conservation areas, Bristow and Roberts dissented. “It’s shocking to me that Maryland is going to [allow a drill pad] 600 feet from an irreplaceable natural area,” Roberts said.
Mitchell joined Bristow, Roberts and Weber in opposing the 300-foot setback from cultural and historical sites, state and federal parks, trails, wildlife. He said “aesthetic issues” and noise were at stake and he wanted to see the health study results before deciding if that buffer would be sufficient.
The buffer of 1,000 feet from occupied buildings fails to protect farm animals, Bristow said. “We don’t have data on goats and cows … [and] we’re going to be eating their byproducts. It’s not protective enough.” That setback also ignores undeveloped property, Roberts said. But Kenney as well as Commissioner Bunker said that was a local property rights matter beyond the scope of the commission.
Kupfer, the Chevron representative, joined Bristow, Roberts and Weber in opposing the 2,000-foot setback from private drinking wells. Kupfer dissented because the setback seemed too large: “This one seems over the top and unsubstantiated.” Roberts, however, has long urged 1-kilometer (3,280-feet) setbacks, based in part on Duke University research that was presented to the commission in April. At the suggestion of Chairman Vanko, the state will run the risk assessment using the 1-kilometer setback as well as the proposed 2,000 feet.
DISCLOSURE OF TOXIC CHEMICALS
The best practice on chemical disclosure satisfied no one, although, again, many could “live with it.” Kenney said Maryland would have the “most stringent regulation” in the nation, requiring disclosure of toxic chemicals and their concentration used at a frack site. Companies claiming a trade secret, however, could withhold the brand name and concentration. Should someone fall ill or be injured by one of these trade secret chemicals, a doctor would contact the company for information. (Medical organizations have complained, for starters, that doctors won’t necessarily know which company to call. Knowing the concentration of chemicals is also key. ) Doctors would be allowed to share the information with the patient and, if the patient is a minor or unconscious, the patient’s family, as well as public health officials — although the information would still be deemed confidential. A company could ask physicians to sign a nondisclosure form, although signing such a form could not be a condition of receiving the information. Health professionals, toxicologists and epidemiologists could also request information about the secret chemicals for research, but that could be conditioned on confidentiality agreements.
Vanko, Kupfer, Raley, Weiss, Mitchell, Edwards, Bunker and Jamison said they could “live with” the proposal. Bristow, Roberts and Weber dissented. “One very strong standard we can set is to start opening this up so research can be done,” said Bristow, who called the proposal “grossly inappropriate” and suggested that “trade secret” chemicals not be permitted.
THERE IS NO ‘AWAY’
What to do with the waste also split the commissioners. Maryland’s geology is unsuited for disposal in deep injection wells, and the state won’t allow sewage treatment plants to accept the toxic and radioactive waste. So, although companies would be encouraged to reuse as much as possible, eventually millions of gallons of Maryland’s fracking waste would be loaded on trucks and shipped out of state. Kenney said the state would require record-keeping on the waste hauler, volume and shipment dates.
Bristow, Roberts and Weber asked about the integrity of tanks and how long waste could be stored on site. They feared a “shell game,” with tanks of toxic and radioactive waste being moved from one temporary spot to another.
“Our shipping our crap to other states that don’t have our regulations” is a “social justice issue,” Bristow said. “Wastewater is going to be the Achilles’ heel of this industry,” she said. “For Maryland to say, ‘We don’t want it here, ship to Ohio,’ seems to me very inappropriate.”
“What will we do in 2021 when Ohio can’t take more?” Roberts asked. Scientists have linked injection wells and fracking in Ohio to earthquakes.
“There’s a problem here,” said Commissioner Weiss, the attorney. “Somebody’s going to make a lot of money off it. But we don’t have [a solution] yet.”
Voting that the practice is appropriate: Edwards, Vanko, Weiss and Kupfer. Willing to “live with” it: Raley, Bunker, Mitchell, Jamison. And dissenting: Bristow, Roberts and Weber. “It’s inappropriate to dump the problem somewhere else,” Bristow said.
FAILURE TO PROTECT
After listening to six hours of voting on these and other best practices, those who would have to live near future drilling sites were sharply critical.
“It’s frustrating that people who do not live on the shale are asked to say if they can ‘live with’ a regulation that can fail to protect those who ‘live on’ the land about to be industrialized,” said Nadine Grabania, who owns a farm and winery in Garrett County with her husband, Commissioner Roberts, and who serves on that county’s Shale Gas Advisory Committee. Calling in between customers at her Friendsville winery, she asked the state officials “to consider weighting the dissenting contributions to this consensus process because these commissioners represent actual residents who will experience the impacts that regulations are intended to mitigate. The state should place a higher value on protections than on the perception that our priority is to facilitate industrial development in rural and residential communities.”
“You ‘number 2s’ can ‘live with’ your decisions, but we will be the ones actually living with your decisions,” said Gabriel Echeverri of Frostburg, who was arrested in February in an act of civil disobedience to stop the facility in Cove Point that would liquefy and export fracked gas. “We are going to have to be living with the eventualities — not the possibilities — of degradation of water, land and air that give us sustenance in this place we call home.”
“Conservation areas get setbacks while farms do not,” said Paul Durham of the Garrett County Board of Realtors. “A limestone cave gets a setback while a field of corn does not. If you are a forest-dwelling bird, you get a setback, but if you are cattle you do not. And if you are fortunate enough to have a well or occupied building on your property, you get a setback, but if your property is unimproved the setback from compressor stations and gas infrastructure is zero feet from your property line and the setback to the well bore is cut in half.” Three studies, he said, have confirmed that proximity to drilling activity lowers property values. He questioned whether the state was trying to set a gold standard when it was ignoring best practices that would protect property values.
The day after the meeting, West Virginia Host Farms gave several commissioners a tour of fracking sites in that state. Members of the public were not permitted to go along.