comments on proposed IDNR regulations


No Frackers will go to jail if they violate WHAT LAWS? IDNR might as well give away the state of Illinois to being totally trashed. Where will the Fracking start? In our State Parks?

Day 49   1/2/13

Topic:  Fines penalties, suspensions and revocations

For regulations to work, levied fines must exceed the financial benefit a company gains by violating the rules. None of the rulemaking sanctions meet this criterion. This results in the other 150 pages of rules being essentially meaningless because they will be ignored.   The draft rule sanctions place the Hydraulic Fracturing Regulatory Act (HFRA)  on the road to failure before the first permit is issued.

Examples:

  1. Section 1-100(b) of the law specifies misdemeanor and felony criminal charges for a number of violations of the law.  Yet there are NO criminal charges in the rules
  2. In Section 1-60(a)1-6 of the law, there are six (6) grounds for suspension or revocation of a permit.  These are re-listed with a 7th in section 245.1100 of the rules.  But the very next  section of the Rules–245.1110–reduces the grounds for an immediate permit suspension to one: “an emergency condition posing a significant hazard to the public health, aquatic life, wildlife or the environment.” This is the most stringent requirement of the seven grounds listed in section 245.1100.  Why bother to list seven possible grounds for permit suspension or revocation in section 245.1100 if you then require the Department to identify the most stringent criteria for an immediate suspension.
  3. Section 1-60(b) of the law requires a much lower standard of proof to suspend, revoke or deny a permit than the rules (245.1110).  Under the law, the Department need only serve notice of its action (to suspend, revoke or deny), including a statement of the reasons for the action.
  4. In the law, if a well operator’s permit has been suspended, the burden of proof is on well operator to prove that the identified problem is “no significant threat to public health, aquatic life, wildlife, or the environment” [Section 1-60(d)].  In the rules, this phrase becomes something IDNR must prove before ordering a permit suspension [Rule Section 245.1100(b)3A].
  5. Sections 1-100 and 1-101 of the law have some stiff penalties that accrue on a daily basis until the reason for the fine is corrected.  These fines can go as high as $50,000 per violation and up to $10,000 per day.  These are replaced by fines so trivial ($50-$2500) that it will cost the IDNR more to impose and collect a fine than the dollar value of the fine itself.

Revisions Needed:  Return to the standards of the law with regard to fines, penalties and revocations.

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510 E. Washington St. Suite 309
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Go there and comment. We are done with this.
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Everyone needs to move to Iowa.

 

Happy New Year!

Day 48,  1/1/2014

Topic:  Rules Deprive Property Owners of Their Property Rights Without Notice and Without Compensation  

Comment:

The rules unconstitutionally deprive many property owners of their property without notice and without compensation–thus, without due process of law.

Under Illinois law, a person who owns the full bundle of rights in land owns the surface and all that is below it.  So, when a landowner owns the full bundle of rights in the land, any drilling on, under, or without the landowner’s consent is an illegal trespass and an unconstitutional taking.  Similarly, any access to the surface without the landowner’s consent is a trespass.

The proposed rules would allow a trespass and a deprivation of property without due process of law, more specifically as follows:

  1. The rules not require a permit applicant to show that it has obtained the consent of the owners of the surface on which the vertical well will be drilled.
  2. The rules do not require a permit applicant to show that it has obtained the consent of the owners of the subsurface property through which the horizontal leg of the well will be drilled, nor even require notice to those property owners.
  3. In Section 245.110, DNR’s proposed rules redefine real property rights in a manner inconsistent with current law.  Specifically, the proposed rules would create an entirely new definition–“real property surface interest”–that is inconsistent with Illinois law in at least two respects.  First, even when mineral rights are severed, the surface owner does not typically relinquish all rights in the subsurface.  Second, the new definition narrows the intent of the law because the law uses the term “owner of real property” while the DNR’s new definition excludes any property owner who owns the surface along with the subsurface and also excludes any property owner who owns the surface along with a controlling interest in the subsurface.

Revisions Required:

  1. Delete the definition of “real property surface interest” in Section 245.110.
  2. Revise Section 245.210(A)(16)(A) & (B), on permit-application requirements, to require that the applicant show that it has obtained the consent of all the owners of real property on which, under which, or through which the vertical and horizontal wells are to be drilled.
  3. Revise Section 245.250(a)(1)(A), on public-notice requirements for permit applications, to require that permit applicants personally notify all owners of real property on which, under which, or through which the vertical and horizontal wells are  to be drilled.

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This probably will not happen, but it can’t hurt to ask.

Here we are at Day 47 (12/31/2013) of the IDNR Comment Period as we close out 2013.   We anticipate hand-delivering 20,000 hard-copy comments to IDNR on either Thursday or Friday afternoon of this week–just trying to firm up the date and time.  We will have a date and time locked in by tomorrow. Thank you, all of you, who have participated in writing comments.  We couldn’t have done this without you.

Today’s Topic: Recouping Attorney Fees

  • Go to: http://www.dnr.illinois.gov/OilandGas/Pages/OnlineCommentSubmittalForm.aspx
  • Click the button:  Subpart C: Permit Decisions (245.300-245.360)
  • In the “Section” dropdown box, click:  245.310 Permit Denial
  • Submit your comment/s (below)
  • Click “Submit”

Comment:

DNR’s rules should include a provision that would authorize the recovery of attorney fees for those who successfully challenge a permit application.

The Statutes:

Section 1-102(c) of the Hydraulic Fracturing Regulatory Act (225 ILCS 752/1-102(c)) allows a circuit court to award attorney fees where a person successfully sues to enforce compliance with the Act:

   “(c) The court, in issuing any final order in any action brought under this Section, may award costs of litigation (including attorney and expert witness fees) to any party, on the basis of the importance of the proceeding and the participation of the parties to the efficient and effective enforcement of this Act.”

Also, section 10-55(c) of the Illinois Administrative Procedure Act (5 ILCS 100/10-55(c)) allows a circuit court to award attorney fees to a party who successfully challenges a DNR rule in court:

   “(c) In any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency’s exceeding its statutory authority or the agency’s failure to follow statutory procedures in the adoption of the rule, the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorney’s fees.”

The Rules:

But DNR’s proposed rules do not allow for an award of attorney fees for an interested person who hires an attorney and successfully challenges a permit application.  Given the typical situation–a vast disparity in financial resources between the typical industry applicant, on the one hand, and an adversely affected individual landowner or other interested person on the other, the ability to hire and pay for an attorney will be essential to ensuring a fair hearing on a contested permit application.

Needed Revision:

Section 245.310 should be revised to include a provision for the reimbursement of attorney fees to a person who successfully challenges a permit application.

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510 E. Washington St. Suite 309
Bloomington, IL 61701
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Just take a look at all the gaping holes the other extraction industry have left in Illinois. Their are parts of Illinois that look like the 10,000 lakes area in Minnesota that used to be valuable farmland. This will be no different.

Day 46  12/30/13

Topic:  Topsoil Replacement Requirements

Comment:

Sections 1-70(b)2 and 1-95(c) of the Hydraulic Fracturing Regulatory Act state that stripped topsoil is to be replaced with similar soil and the site returned to its pre-drilling condition.

Section 1-95(c) of the Act specifically states: “The operator shall restore any lands used by the operator other than the well site and production facility to a condition as closely approximating the pre-drilling conditions that existed before the land was disturbed for any stage of site preparation activities, drilling, and high volume horizontal hydraulic fracturing operations.”

When drilling is anticipated to be completed in less than a year, Section 245.410(d) of the Rules stipulates that the topsoil is to stockpiled and stabilized to prevent erosion.  However, “In the event it is anticipated that the final reclamation shall take place in excess of one year from drilling the well, the topsoil may be disposed of in any lawful manner provided the permittee reclaims the site with topsoil of similar characteristics of the topsoil removed.”

What is missing, and needed, in this section of the Rules is the stipulation that the replacement topsoil will be not only similar in characteristics of the topsoil removed, but also match the removed topsoil in VOLUME.   In fact, there is no place in the rules that requires measurement of the topsoil removed or measurement of the replacement topsoil.  Without such a requirement, it would be easy for an unscrupulous operator to replace the topsoil with smaller quantities than were originally removed.

Revisions Needed:  When final reclamation is anticipated to exceed one year and topsoil is removed from the site, Section 245.410(d) must require measuring the volume of the removed topsoil and stipulate that the replacement topsoil will match both the quality AND quantity of the removed topsoil.

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Pollution with be rampant.
Day 45   12/29/13
Topic:  General Fluid Storage
Comment:
This section lacks the specificity needed to insure that fracking will be conducted in a manner that will protect the public health and safety and prevent pollution or diminution of any water source. (Statute 1-53(4))
  • “Compatible” (245.825(a)(2), (c)(1)).  The regulations should clarify what is “compatible” for purposes of provisions that tanks and “piping, conveyances, …must be constructed of materials compatible with the composition of the fracking fluid….” Specifically, theDepartment should clarify that “compatible” includes being resistant to corrosion, erosion, swelling, or degradation that may result from such contact.
  • Corrosion inspection (245.825(a)(5)). The Department should define what is meant by the requirement that above-ground tanks be “routinely” inspected for corrosion, i.e., specify a time interval.
  • Secondary containment (245.825(b)). The Department should require that secondary containment be designed and constructed in accordance with good engineering practices, including: (a) Using coated or lined materials that are chemically compatible with the environment and the substances to be contained; (b) Providing adequate freeboard; (c) Protecting containment from heavy vehicle or equipment traffic.
Illinois People’s Action.
510 E. Washington St. Suite 309
Bloomington, IL 61701
United States
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If you can find them you can engage in direct action.

 

Day 44   12/28/13

Topic: Directional Drilling Plan

Comment:

This comment addresses inadequacies in two sections:  Sections (245.210(a)(4)) Directional Drilling Plan and Section (245.210(a)(7)) Scaled plat maps, diagrams, or cross sections,

These sections do not explicitly require that the applicant provide a map that depicts the exact location of the wellbore, i.e., draws it on the map from beginning to end. This information is critical to specific notice and standing, which reference persons within 750 feet of the wellbore.

Revisions Needed:  Require a map depicting the exact location of the wellbore.

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Call you Doctor and have him send in his comments.

 

Day 43   12/27/13

Topic: Trade Secret Disclosure to Health Professionals

Comment:

The proposed language concerning disclosure of trade secret-protected information to health professionals is neither consistent with the statute nor protective of the public.

Right to Know.  Section 1-77(l) of the Act is clear that information shall be provided, as needed, to health professionals who demonstrate a need for it.  Yet, section 245.730 of the Rules diminishes the language of the Act, stating only that the Department “may” provide information to health professionals who demonstrate a need for it.

Limitation to “normal business hours.” Subsection 245.730(b)(1) of the Rules states, in the event of an emergency, that a health professional may call the Department during “normal business hours.” For an emergency that occurs after hours, the Rules suggest calling the trade secret holder. This is inadequate. The Department should provide a 24-hour hotline for emergency calls pursuant to this section.

“Trade Secret Holder.” Subsection 245.730(b)(2) of the Rules allows a health professional to seek the necessary information from a “trade secret holder,” but there is no means provided for the health professional to know who the trade secret holder is, or what phone number to use to reach it. Furthermore, this provision is found nowhere in the statute, seemingly adding another unnecessary burden on the health professional.

Lack of a time limit for the Department’s response. The Department should abide by the same 3-hour time limit for a response that applies to trade secret holders pursuant to 245.730(b)(2).

Disclosure of names receiving trade secret information.  Subsection 245.730(e) of the rules requires that health providers report to the trade secret holder the names of persons to whom the protected information was disclosed.  This requirement is found nowhere in the statute. It is inappropriate to burden health professionals with such an obligation in the absence of statutory authorization to do so.

Revisions Needed:  Rewrite the section to comply with the strongest interpretation of 1-77 of the Statute including 24-hour accessibility.  Do not require that health providers report names of persons to whom protected information was disclosed as this was not required in the statute.

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510 E. Washington St. Suite 309
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But these are important technical comments. So get to it.

Day 41, 12/25/13  Merry Christmas!  Yes, we’re hoping you’ll take just a minute from your festivities to comment on the fact that IDNR violated it’s own rules with regard to the 5 hearings it held around the state. 

Topic – DEFICIENT NOTICE FOR PUBLIC HEARINGS
This comment is in response to the paragraphs of the published notices setting the dates for the public hearings on the Proposed Amendments to the Rules under the Oil and Gas Act and on the Proposed Rules under the Hydraulic Fracturing Regulatory Act.  37 Illinois Register 18081, 18081-82 (November 15, 2013); 37 Illinois Register 18097, 18099 (November 15, 2013); 37 Illinois Register 19746 (December 6, 2013); 37 Illinois Register 19747 (December 6, 2013).
Comment:
DNR did not provide the required public notice for any of the public hearings, because in each case the notice for the hearing was not published in the Illinois Register at least 20 days before the hearing.  Although the Illinois Administrative Procedure Act allows DNR to hold a public hearing, in response to a request for a hearing, less than 20 days after public notice in the Illinois Register if the notice of hearing is published in the notice of proposed rulemaking (5 ILCS 100/5-40), DNR has chosen by rule to require a minimum of 20 days’ notice.  DNR’s adopted rule for scheduling public hearings states as follows:
“The Hearing Officer shall set a time and place for hearing and shall give notice as follows, at least 20 days prior to the date of the hearing;
a) to the proponent, by mail;
b) to members of the general public, by means of a general news release and notice in the Illinois Register.”  2 Ill. Admin. Code 825.140.
The first notice of public hearings–for Chicago and Ina–was published in the Illinois Register on November 15, 2013.  But the Chicago hearing took place on November 26, 2013, and the Ina hearing took place on December 3, 2013.  Each of those hearings was held on less than 20 days’ notice.
The second notice of public hearings–for Effingham, Decatur, and Carbondale–was published in the Illinois Register on December 6, 2013.  But the Effingham hearing took place on December 16, 2013, the Decatur hearing took place on December 17, 2013, and the Carbondale hearing took place on December 19, 2013.  Each of those hearings was held on less than 20 days’ notice.
Thus, DNR’s public hearings were held in violation of its own administrative rules.  These violations deprived the citizens of a  meaningful opportunity to be heard.
The remedy for this violation is either additional hearings in these areas, each with the required minimum 20 days’ notice, or alternatively, a new First Notice with the opportunity for new public hearings and a new public comment period.
Illinois People’s Action
510 E. Washington St. Suite 309
BloomingtonIL 61701
United States

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So tighten them up folks.

Day 40, 12/24/13

Topic:  Serious Risk

Section 1-53(a)(4) of the Statute states that hydraulic fracturing operations “will be conducted in a manner that will protect the public health and safety and prevent pollution or diminution of any water source.”  This portion of the regulations was incorporated into subsection 245.300(c)(4) of the rules, which, although not as strict, makes clear that no permit may be issued unless the high volume horizontal hydraulic fracturing operations at issue “are reasonably expected to be conducted in a manner that will protect the public health and safety and prevent pollution or diminution of any water source.”

But Subsection 245.330(d) seems to imply that a permit modification that poses a “serious risk” to public health or the environment could nonetheless be granted without changes that eliminate that risk.

While we disagree with the loosening of the language of 1-53 the regs to 245.300 of the rules, it would be difficult to imagine that a rule that expects fracking to be conducted in a manner that will “protect the public health and safety and prevent pollution of diminution of any water source” would allow fracking to occur when a “serious risk” exists.

Revisions Needed:

At a minimum, the following language should be added to this subsection: “Modification to a permit shall not be granted unless and until the proposed action is modified so that the criteria set forth in subsection 245.300(c)(4) are met.”

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I always thought that the challenge of posting 45 days of comments was, well challenging. That is why I confined myself to just ten comments. Anyway here it is.

 

Let’s try this again–this time with the directions on which button to click and what section to put in the dropdown box. 

As long as we’re sending out another e-mail today, would any of you be able to participate in a Comment Drop on Thursday, January 2 at IDNR?  We don’t have a specific time yet but we’re looking for at least a dozen leaders who would come out with us that day to deliver the over 10,000 comments that have been generated.  Please respond to this e-mail if you’re interested in participating.

Day 39   12/23/13

Topic:  What should be required on an application when modifications are made.

Comment:

Subsection 245.330(b)(1) states, “Sections of a permit modification application that are not the subject of a proposed deviation from an original permit are not required to be completed.”

It is entirely possible that a potential significant impact of a modification would not be the “subject of” the modification but rather a consequence of it and those portions of a permit modification should be required to be completed.

Revisions Needed:  This language in this section should be modified to state that sections “that are not impacted by” the proposed modifications need not be completed.

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