Day 43   12/27/13

Topic: Trade Secret Disclosure to Health Professionals

• Go to: http://www.dnr.illinois.gov/OilandGas/Pages/OnlineCommentSubmittalForm.aspx
• Click the button: Subpart G: Chemical Disclosure
• In the “Section” dropdown box, click:  245.730
• Submit your comment/s (below)
• Click “Submit”

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.

Topic:  Serious Risk

• Go to: http://www.dnr.illinois.gov/OilandGas/Pages/OnlineCommentSubmittalForm.aspx
• Click the button:  Subpart 3: Permit Decisions
• In the “Section” dropdown box, click:   245.330 Permit Modifications
• Submit your comment/s (below)
• Click “Submit”

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.”

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.

• 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”

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.

Day 38   12/22/13    

Today’s Topic:  Determining if water pollution has occurred

• Go to: http://www.dnr.illinois.gov/OilandGas/Pages/OnlineCommentSubmittalForm.aspx
• Click the button:  Subpart F: Water Quality
• In the “Section” dropdown box, click:  245.620 Rebuttable Presumption of Pollution or Diminution
• Submit your comment/s (below)
• Click “Submit”

Comment:

Section 1-80 of the Act governing Water Quality Monitoring provides a list of indicator chemicals that would suggest water contamination has occurred but doesn’t limit what may be tested for.  In fact, this section of the law states that “Sampling shall, at a minimum, be consistent with the work plan and allow for a determination of whether any hydraulic fracturing additive or other contaminant has caused pollution or diminution for purposes of Sections 1-83 and 1-85 of this Act.”

Section 1-85 of the Act governing the presumption of pollution or diminution does not limit the sources of sampling data that may be used to prove the pollution or diminution has occurred.

And yet, the IDNR Rules in Section 245.620 have narrowed the statutory basis for the presumption, treating Section 1-80’s list of “indicator chemicals” as a comprehensive list of what should be tested for.  The 1-80 parameters are intended to be INDICATORS of the presence of contamination from hydraulic fracturing, not an exclusive list of the possible contaminating constituents.  There are over 700 chemicals used in fracking.  1-80 lists only a handful of them.  A reasonable person would conclude that if a chemical other than those on the list of indicator chemicals was found and that chemical was part of the list of chemicals in the fracking operator’s work plan, then the operator would be presumed to be responsible for that contamination.

Revisions Needed:  Section 245.620 must reflect the intent of the law that the operator will be responsible for any pollution or diminution caused by fracking.  This responsibility will not be limited to a list of indicator chemicals but will include all chemicals used in the fracturing process.