Day 37 (11/21/13)

Topic: What constitutes a “significant deviation” in a permit and how should it be addressed with regard to the public’s right to know and comment.

• Go to: http://www.dnr.illinois.gov/OilandGas/Pages/OnlineCommentSubmittalForm.aspx
• Click the button: Subpart C: Permit Decisions
• In the “Section” dropdown box, click:  245.330 Permit Modifications
• Submit your comment/s (below)
• Click “Submit”

Section 245.330 narrows it’s counterpart in the law and also sets up a system that keeps citizens largely in the dark about changes to permits that may well be significant.

Section 1-55(c) of the Act addresses modifications by the applicant.  It states, “If the Department determines that the proposed modifications constitute a significant deviation from the terms of the original application and permit approval, or presents a serious risk to public health, life, property, aquatic life, or wildlife, the Department shall provide the opportunities for notice, comment, and hearing required under Sections 1-45 and 1-50 of this Act.”

The statute does not define what constitutes a “significant deviation,” but the draft rules radically circumscribe the term, giving it a narrow and exclusive meaning that is found nowhere in, or supported by, the statute.

Specifically, the draft rules define significant deviation only as those modifications that “propose to:

1. move the  well, including the horizontal well bore,
2. add new horizontal well bores, or
3. add length to any existing or planned horizontal well bores.”

While these circumstances would certainly constitute significant deviations, so would many others. For instance, what about a modification calls for significantly more water use or water use from a different source even if the increased use fell short of a “serious risk” to public health or the environment.

Revisions Needed:  We recommend the NRDC’s language to define a significant deviation: “A permit modification shall be treated as a significant deviation from the original permit if the proposed actions or potential impacts of those actions may differ materially from those associated with the original permit application.” If specific examples are used to further flesh out this definition, those examples must be framed non-exclusively, i.e., employing the language “including but not limited to….”

Citizens should be informed of these deviations and allowed opportunity for public comment.