DEQ cranking out administrative rules in new bid for “primacy” in regulation of injection wells

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Updated March 23, 2018

by Ellis Boal

Call to action

Weber 4-8, waste injection well in Mayfield Township, Grand Traverse County.

Michigan’s Department of Environmental Qualify (DEQ) is proposing new administrative rules which will allow it to be the prime regulator of injection wells in the state.

Send your comments about this to DEQ by 5:00 pm on March 16. Here is a template for requesting a 30-day extension of the comment period.

Background of primacy in Michigan

Even as DEQ staff in 2014 incurred multiple felony charges in the Flint water crises, it was beginning a process of seeking “primacy” from the federal Environmental Protection Agency (EPA) over regulation of oil-gas injection wells.

These wells, called “class II injection wells,” are reverse wells, in which operators pour liquids or gas into the earth — for toxic waste disposal, storage, or enhancement of oil-gas extraction — instead of taking product out and selling it.

The injected wastes include flowback of the fracturing/acidizing slurry used to complete oil-gas wells, as well as salty brines originally below ground which come to the surface during oil-gas extraction. These liquid wastes are sometimes radioactive.

Michigan has about 1300 class II injection wells. DEQ expects this number to increase.

At present, the regulatory matrix in Michigan requires that both DEQ and EPA sign off on new class II permits.

But unlike Michigan, 34 states have primacy for class II wells. Like Michigan, Pennsylvania and New York have significant oil-gas reserves, but don’t have primacy. Michigan doesn’t need it either.

Under the federal Safe Drinking Water Act, Michigan could have sought primacy 35 years ago, when most other oil-gas producing states sought it and got it. But Michigan once had a long-time concern for groundwater protection.

Injection wells are an important issue. As we reported in 2016, they leak, eventually most wells fail, and in 10 to 100 years from now we will find most groundwater in the US is polluted. This is particularly noticeable given the increased number of wells recently which use fracturing completion methods.

2014: Michigan seeks injection primacy

In 2014 DEQ began the process of seeking primacy. In November 2014 DEQ circulated a “briefing report” boasting that:

The State of Michigan is well equipped for Class II … primacy, understanding state specific geography, geology, cultural, climactic [sic], social, and economic issues. … The State of Michigan’s record of accomplishment for excellent environmental protection and regulation for Class II injection will continue….

A month later it held a “public hearing,” illegally with no advance public notice that a record would be made and public comments accepted. Only two people from the public showed up, one representing BMF. For our part, we noted DEQ had advanced no reason for primacy other than that it wanted the power.

In 2015 again with no public notice, DEQ submitted a draft primacy application to EPA, calling for the two agencies to “maintain” their high level of “cooperation.”

In January 2017, as we reported later in the year, EPA ripped the DEQ application. It cited “fundamental” concerns that the program provisions “limit effective protection” of public water supplies, the DEQ’s definition of fresh water “is narrower in scope” than the EPA’s, and the DEQ application had “inconsistencies and unclear descriptions.”

As examples, EPA noted:

  • the application had no information about confining zones;
  • the definition of class II wells did not include frack wells which use diesel fuels;
  • DEQ didn’t know the difference between “fracture gradient” and “fracture pressure”; and
  • certain DEQ rules place a high documentation burden on people who want to petition for a hearing.

But before it could even consider primacy, EPA added, DEQ would have to upgrade its formal administrative rules, a process which involves a for-real public hearing, and can take a year or more.

The same year Kentucky sought primacy and EPA granted it.

The new DEQ bid

Unbowed, DEQ drafted new administrative rules last December. Its 8-member Oil and Gas Advisory Committee — of which 6 members represent industry — helped develop the draft.

Most of the revisions consist of a “comprehensive” update for injection wells. But others would:

  • increase bonds for casing, plugging, and repairing all types of wells, the last increase having been in 1996,
  • provide flexibility to extend permit termination dates so as to diminish problems for operators,
  • streamline requirements for approving minor changes to well locations prior to drilling, and
  • fix one typographical error.

Importantly, the primacy-related injection well changes “do not go beyond” current federal requirements. Thus there is no requirement that an injection well test and identify waste before it goes down the hole.

The text of the current rules is here. The text of the proposed revision is here. The regulatory impact statement/cost-benefit analysis is here.

DEQ emphasizes:

Injection wells are essential to the future of Michigan oil and gas production for disposal of waste fluids and for recovery projects in existing oil fields. Having a single regulatory structure protective of underground sources of drinking water will have a positive impact on oil and gas development and will reduce the cost of regulatory compliance by elimination of duplicative regulations.

DEQ adds that current EPA injection standards are good enough. Accordingly construction and operation will not change under the proposed rules, nor will performance and design standards. Stated otherwise:

The proposed rule set … will … position Michigan to eliminate dual regulation by obtaining primacy.

In other words the new rules would simply bring state standards up to the level of the federal standards which are already in place. So if the standards will remain the same, will there be any benefit from DEQ primacy? Yes but only for industry.

The public hearing — Industry

DEQ held a public hearing on the revisions in Lansing on February 28. A transcript was produced.

Eight industry leaders attended and spoke, including Bill Myler Jr. and Robert Long, both members of Oil and Gas Advisory Committee which helped write the draft, and James R. Neal, a longtime outspoken advocate of compulsory pooling.

Jordan Exploration’s Ben Brower said “we certainly don’t like the duplicity and dealing with the EPA has been extremely difficult.”

Dave Farner of Dart Oil and Gas claimed that 43 states have primacy.

West Bay Exploration’s Tim Baker claimed that under the EPA his company had waited seven years for a particular permit because EPA gave standing to opponents based on “nebulous science issues,” but DEQ staff were “better trained.”

Though Myler helped write the draft, he and Brower ridiculed it as “overkill.”

Overkill? Even so, industry’s support was unqualified and adamant, asking for primacy “the sooner the better.”

Why? Farner said EPA staff “ask the wrong questions.” Brower said “We work with you [DEQ] a lot.” Long said, “They [DEQ staff] know us. We know them.”

The public hearing — MCWC

Four people appeared representing Michigan Citizens for Water Conservation, Jeff Ostahowski, Peggy Case, Wendy Nystrom, and Pamela Gilbert, to speak in opposition. Some of the points they made:

  • Term-limits should be imposed on injection wells. Otherwise at some point there will be an earthquake.
  • Much of the injectate will travel underground two miles or more. Yet the DEQ area of review covers only a ¼-mile radius.
  • A Richter 4.2 earthquake such as Michigan had in 2015 can affect strata up to two miles away.
  • MCWC once sent DEQ data on 115 old well bores in the area where an injection well was being proposed, but it didn’t matter. Waste should be tested and identified before it goes in the ground.
  • There are no maps for flow or transfer lines from existing contiguous operations.
  • Injection wells are serviced by secondary contracted LLC companies which are unbonded.
  • For oil-gas enhancement, only brine should be allowed not fresh water.
  • The comment period should be extended beyond the current end-date of March 16.

MCWC will be following up with written comments.

BMF critique of the new rules: quakes, faults, site assessment

As seen, when it comes to injection EPA already has a low opinion of DEQ.

This article will elaborate only on the earthquake raised by MCWC:

An EPA regulation currently requires that injection pressure must be such as to assure it will not “initiate new fractures or propagate existing fractures in the confining zone” and will not cause the “movement” of injection or formation fluids into public water supplies.

The DEQ draft requires that there be a geologic confining interval that can “limit” fluid movement above an injection interval, and information demonstrating that well construction “will prevent” fluid movement so as to endanger public water supplies. But it does not specifically require assurance that injection pressure will not “propagate existing fractures.”

Nor does it require identification of faults outside the ¼-mile “area of review.” By contrast an EPA regulation rejects a fixed radius, where inappropriate based on operational parameters and local geologic information, in favor of evaluation within a formula-determined “zone of endangering influence” which can be wider than ¼-mile.

BMF added further comments on March 16. Excerpts:

The safe drinking water act makes no direct reference to seismic issues. And EPA has shown little interest in the topic since SDWA was enacted.

But it did do one thing. In 2013-14 a national technical workgroup convened a workshop, “Minimizing and managing potential impacts of injection-induced seismicity from class II disposal wells: practical approaches.”

The workgroup studied incidents and swarms in North Texas, Central Arkansas, Braxton County West Virginia, and Youngstown Ohio. Additionally an appendix discussed aseismic examples of class II disposal well activity causing long distance pressure influences.

There is no evidence DEQ has given any attention whatever to these issues. Indeed, you emphasized on February 28 that DEQ would impose no requirements beyond those already in effect under SWDA. This is wrong-headed. DEQ should do better.

Academic and public interest in seismicity has grown since SWDA. See for instance “Warning bells about fracking and earthquakes growing louder“, … reporting on a recent study of 300 hydraulically fractured wells near Fox Creek Alberta…..

In light of increasing injection and public interest, why would DEQ wall itself off from seismic issues?

True, few faults are known to exist in Michigan. But the same was said of Oklahoma until injection of oil-gas wastewater began in recent years. “New fault line discovered after 5.8 Oklahoma earthquake“….

DEQ should propose a rule related to seismicity, and convene a new public hearing to air the issue.

 

The new natural gas plant invasion in Michigan would spike demand for fracked gas

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power-plant-815799_960_720There is growing alarm in Michigan by the increased number of proposed natural gas power plants that will burn natural gas (from fracking) in order to make electricity. If any of these are successful in being built, they doom Michigan to being dependent, for decades upon decades, on more fossil fuels and sustained fracking, and untold amounts of frack wastes endangering the health of future generations. Untold amounts of water used for fracking . . . to find natural gas . . . to burn . . . to make electricity. It’s not sustainable, and it’s not going to save our water or the climate.

New plants are planned for Niles, Marshall, Lansing, Fowlerville, and St. Clair.

In this first article on the impending natural gas plant invasion, here is one action you can take regarding the plant proposed for St. Clair.

According to groups fighting the St. Clair plant, “DTE is trying to increase electricity rates by 133% to pay for a new natural gas power plant, when they could save $340 million dollars by building wind and solar power plants instead. DTE probably isn’t taking advantage of these alternative because it has a conflict of interest with a partner company that owns the NEXUS natural gas pipeline. Essentially DTE customers will be forced to pay hundreds of dollars a year extra for electricity so that DTE can make money off of their affliated pipeline under the table. The Michigan Public Utilities Commission (MPSC) is appointed by the governor to protect Michigan’s citizens from such unnecessarily rate hikes. Instead the MPSC has said they will approve the plan early this week despite publically recognizing that DTE’s plan is flawed and biased towards natural gas”

Call the Michigan Public Services Commission at 517-284-8330 to leave a public comment about Case #U-18419. Talking points: You’d like to have more jobs and cheaper electricity from wind and solar power plants, protect Michigan’s water from fracking and frack wastes, and have smaller community-based alternative energy.

If you are a DTE customer and you don’t want your electricity prices to increase 133% to fund a natural gas plant when wind and solar plant would be cheaper you should  call Michigan Public Services Commission. To publicly commit to calling in and to read the notes from others who have already left public comments, go to the group’s call-in sign up sheet here.

Michigan policy: foster the oil-gas industry and warm the globe

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by Ellis Boal

Updated February 15, 2018

Michigan’s early days with oil and gas

In 1912 and 1913 a group of local capitalists and businessmen formed the Saginaw Valley Development Company to prospect for oil. During the group’s second attempt, a hole near the geographical center of the city was treated with the downhole discharge of 100 quarts of nitroglycerine. The well “erupted with a spout of oil forty feet high from the mouth of the well and stood solid for four or five minutes. This spurt was followed a few minutes later by a second, higher column of oil that lasted about two minutes and also included natural gas. The excitement in Saginaw was spontaneous.” Predictions were freely expressed that a new era of prosperity was opening for the Valley. … [But the] discovery well, along with eight others nearby, did not pan out commercially. … [Later] a test well was started…. On August 29, 1925, the Saginaw News reported the well’s success with a banner headline. … [I]t was enough oil to be sold commercially. Michigan had arrived as a real oil and gas producing state.

This is the story of Michigan’s spectacular entry into oil-gas development in the 1920s, according to a history of the industry collected at Central Michigan University’s Clarke Historical Library. The collection is sponsored by a Michigan Oil & Gas Association (MOGA) affiliate.

The Muskegon field followed Saginaw in 1927. At a prime location near a center with a shipping infrastructure by land and water, the field made Muskegon a boom town. Oil crossed the state from Muskegon to a refinery at Zilwaukee.

Mount Pleasant, c 1934. Photo courtesy of Clarke Historical Library Central Michigan University.

Then according to the collection, in 1928 the new Mount Pleasant field proved the “entire state” had become “Oil Hunting Country.” Mount Pleasant became another boom town, and is the site of MOGA’s headquarters today.

In those days discoveries meant gushers that drenched workers in oil, and attracted crowds to celebrate in a carnival atmosphere. Midland County was the site of the state’s biggest disaster in July 1931 when the Struble 1 well exploded killing 10 people including the operator’s wife.

The activity had been catching the attention of Michigan academics. Oil-gas lecturer James A. Veasey, writing in the Michigan Law Review in 1920, reflected on the magical changes wrought by these substances, and explained how they could be exploited completely:

No thoughtful observer will presume to gainsay the all-important part which the oil business plays and will continue to play in the industrial, commercial and social life of the civilized world. At the end of [World War I] it was said with much truth that the Allies had floated to victory upon a sea of oil. … Petroleum products are now practically indispensable to the progress of modern industry and commerce. In a somewhat less degree they enter into almost every phase of the daily life of civilized peoples. … No substance now known possesses within itself greater potential capacity to serve mankind. … In these circumstances, pointing as they do to an enormous and ever-increasing demand for the commodity, the question of an adequate supply of crude material reaches the highest importance. … Under pressure of this serious economic condition the petroleum industry must bend its efforts toward the complete exploitation of the lands of the United States for oil.

In modern times we know better. It is hardly disputed that oil and natural gas as carbon fuels exacerbate global warming — one of the many aspects of climate change — which can lead to world-wide catastrophe. Even the oil-gas industry, in futile pursuit of carbon sequestration, agrees.

But in 1939, taking a cue from James Veasey, Michigan statutory policy began “fostering” the oil-gas industry “most favorably” and “maximizing” oil-gas production.

It was an ideology and it serves us poorly. But save for a slight modification in 1973, today it continues to threaten the climate.

Of the 30 states which used high-volume production methods, in 2013-14 Michigan ranked 18th in natural gas, 9th in shale gas, and 17th in crude oil.

There is little sign that state officials and policymakers have any interest in tamping down production. Last June the governor’s office announced Michigan will not be joining other states in upholding standards of the Paris climate accord.

So Michigan is part of the parade marching into a black hole. The future looked so good in the 1920s. How did we get here from there?

Characteristics of oil and gas

According to Donald H. Ford of the University of Michigan Law School writing in the Michigan Law Review in 1932 – before the advent of horizontal drilling – oil and gas were “fugacious,” meaning they were fleeting and fluctuating like wild animals. Unlike coal which stays in one place, oil and gas could migrate naturally and rapidly underground from under one owner’s land to another’s. They could be extracted with technology which could divert migration toward or away from a particular owner’s land. Further, no one “owned” oil or gas until it was brought to the surface and captured, and was thereby “reduced to possession.”

Generally an oil reservoir is capped by an anticlinal (arch-like) dome, wrote Ford. Oil sand textures are not uniform, some being tight and others loose. Being light and mobile, natural gas tends to accumulate under the top of the dome, followed underneath by oil and then by water. The drilling of a well in a reservoir establishes an area of low pressure resulting in a flow of pressurized gas toward the center, which can bring oil and water along with it. They can flow easily at first, but tend to diminish or stop as the drainage area increases. If the rate of gas flow is not checked with back-pressure, it can bypass valuable oil and leave it behind, or water may rise and “drown” the well. In 1932 the US Supreme Court said in Champlin Refining Co v Corporation Commission of Oklahoma:

Every person has the right to drill wells on his own land and take from the pools below all the gas and oil that he may be able to reduce to possession including that coming from land belonging to others, but the right to take and thus to acquire ownership is subject to the reasonable exertion of the power of the State to prevent unnecessary loss, destruction or waste.

So it was thought in that period that the tendency of existing law to treat oil and gas the same as stationary substances like coal, encouraged waste of gas pressure even while gas pressure is what drove the oil.

(April update: This month the Pennsylvania Superior Court overturned a century of common law which allowed an operator to sink a well and then drain oil and gas from a neighboring property without paying the neighbor. It allowed a neighbor’s trespass suit for punitive damages to proceed against a Marcellus shale gas operator, based on a claim that extraction channels for the gas were created by hydraulic fracturing and crossed the boundary onto the neighbor’s property, though the wellbore itself did not cross the boundary:

We … conclude that hydraulic fracturing is distinguishable from conventional methods of oil and gas extraction. Traditionally, the rule of capture assumes that oil and gas originate in subsurface reservoirs or pools, and can migrate freely within the reservoir and across property lines, according to changes in pressure…. Unlike oil and gas originating in a common reservoir, natural gas, when trapped in a shale formation, is non-migratory in nature. … Shale gas does not merely “escape” to adjoining land absent the application of an external force. … [M]any natural gas discoveries “are made in tight, relatively impermeable rocks, and natural gas will not flow easily from these tight reservoirs without some assistance.” … Instead, the shale must be fractured through the process of hydraulic fracturing; only then may the natural gas contained in the shale move freely through the “artificially created channel[s].”

Though a Pennsylvania decision is not binding in Michigan, courts here will likely take a close look at the reasoning, grounded as it is in traditional property rights.)

Michigan’s 1939 Public Act 61

MOGA lobbied for “Act 61” in 1939, the statute which first articulated the policy mandating fostering and maximizing. Oil and gas are nonrenewable. Even so the leading section of the statute cites the state’s history of overcutting renewable forests as a cautionary tale. Innocuously titled “Construction of Part,” the section says in full:

It has long been the declared policy of this state to foster conservation of natural resources so that our citizens may continue to enjoy the fruits and profits of those resources. Failure to adopt such a policy in the pioneer days of the state permitted the unwarranted slaughter and removal of magnificent timber abounding in the state, which resulted in an immeasurable loss and waste. In an effort to replace some of this loss, millions of dollars have been spent in reforestation, which could have been saved had the original timber been removed under proper conditions. In past years extensive deposits of oil and gas have been discovered that have added greatly to the natural wealth of the state and if properly conserved can bring added prosperity for many years in the future to our farmers and landowners, as well as to those engaged in the exploration and development of this great natural resource. The interests of the people demand that exploitation and waste of oil and gas be prevented so that the history of the loss of timber may not be repeated. It is accordingly the declared policy of the state to protect the interests of its citizens and landowners from unwarranted waste of gas and oil and to foster the development of the industry along the most favorable conditions and with a view to the ultimate recovery of the maximum production of these natural products. To that end, this part is to be construed liberally to give effect to sound policies of conservation and the prevention of waste and exploitation.

As seen from the text, the statute also expresses a second overarching policy, the goal of guarding against “unwarranted waste” of gas and oil. Elsewhere in Act 61 “waste” is prohibited absolutely.

In the definitions section, waste was defined “in addition to its ordinary meaning” in three categories: underground waste, surface waste, and market waste. In sum:

  • Underground waste: practices which dissipate reservoir energy, reduce the total quantity of oil or gas extracted, or damage underground water, brines, or other mineral deposits.

  • Surface waste: drilling of unnecessary wells; unnecessary surface loss of gas or oil; unnecessary damage to surface, soils, animals, fish, aquatic life, or property; unnecessary endangerment of public health, safety, or welfare.

  • Market waste: production in excess of market demand.

Thirty-four years later in 1973, the legislature expanded the definition of “surface waste,” with support of the Department of Natural Resources (DNR), to include damage to “other environmental values” alongside damage to soils, animals, fish, aquatic life, and property. As originally proposed, the definition in the bill would have included damage to “aesthetics or other environmental values.” Attorney General Frank Kelley had ruled in 1971 that the legislature “constitutionally” could have included “aesthetics” in the 1939 definition and the DNR wanted it included in 1973, saying:

Contemporary thinking suggests that “aesthetics and environmental values” are positive definable values that should be considered.

But the legislature declined.

Today Act 61 is administered by the state’s Department of Environmental Quality (DEQ), alternately referred to as the “Supervisor of Wells” or “Supervisor.” The name has changed over the years, the most well-known predecessors having been the DNR, and “Natural Resources Commission” (NRC).

Notably, Act 61’s examples of environmental “surface waste” are all couched in subjective words, “unwarranted,” “unnecessary,” and “other.” That means the environmental part of the policy is dependent on warrant and necessity. But warranted for what? Necessary for what? And just what are the other environmental values?

The statute’s only answer: maximizing production and most favorably fostering the oil-gas industry.

Particularly the word “unnecessary,” repeated several times in the definition of “surface waste” has no definition, and allows the DEQ wiggle-room.

For example, DEQ application forms for a drilling permit ask the dimensions of the surface well site in feet and acres. In practice today, sites cleared of trees in the forest (including the state forest) sometimes range up to five acres. But no statute, administrative rule, or supervisor instruction limits them to that area. Cleared sites in the future could be larger, if DEQ were only to say it would maximize production.

As another example, the definition of “surface waste” has no specific reference to air or climate. Nor could it: air and climate are not confined to the surface. The DEQ administrative rules do prohibit “nuisance odors” at and around the wellhead. An example is deadly hydrogen sulfide.

But destructive greenhouse gases like methane and carbon dioxide ordinarily have no “odor.” And DEQ’s Air Quality Division confirms that in practice it does not monitor them at the wellhead or at the associated tanks, dehydrators, burners, line heaters, or engines. Thus DEQ has no interest in the climate-changing effects of oil-gas activity. Under Act 61, climate is just not an “environmental value.”

Act 61 and the administrative rules do have specific health and environmental provisions. Wells, facilities, and sensitive areas (homes, lakes, streams, protected species) have to be separated by certain isolation distances. Nuisance noises are not tolerated. There are special rules about high-volume fracking. DEQ enforces these.

Act 61 is codified today as “Part 615” of Michigan’s comprehensive 1994 Natural Resources and Environmental Protection Act (NREPA). Colloquially it is often referred to as “Part 615.”

So “Construction of Part” comes down to a mandate that DEQ regulators are to favor the industry unless an environmental issue is tied to what DEQ says is waste. That is, the title “Construction of Part” means that fostering the industry, maximizing oil and gas production, and guarding against waste are construed as overarching guides whenever a judge, jury, or environmental regulator tries conscientiously to apply the sentences and paragraphs of Act 61/Part 615.

Act 61 gives the Supervisor of Wells jurisdiction to regulate and control drilling, completion, and operation of oil and gas wells. He/she determines well spacing, acceptable drilling and production operations, proration of the amount of oil or gas that can be taken, forced pooling, who may drill, and environmental measures.

From time to time the Supervisor is assisted by an 8-member “Advisory Committee” (formerly “Advisory Board”) of which six are from the Michigan industry and two from the public.

The traditional evaluation of Act 61

Almost unanimously, the legislature passed Act 61 and gave it immediate effect. The governor signed it the same day he received it, giving a cold shoulder to a group of protesting independent oil producers and farm organizations.

A 1991 county-by-county MOGA history describes the run-up to enactment this way:

But none of these developments matched the impact to the industry of the enactment of [Act 61] the first comprehensive oil contol [sic] law. Where in both the 1936 and 1937 Legislative sessions oil bills had died along the way, in 1939 the House approved 79 to 8 and the Senate approved 24 to 3. Gov. Lauren [sic] Dickinson (who succeeded Gov. Frank Fitzgerald who died in office ) signed the oil bill.

The birth of the oil act had been long and painful and often bitterly contested. The Association had worked hard for it and most other segments of the industry at least dropped active opposition.

Supervisor P. J. Hoffmaster, a forestry graduate, front center, surrounded by the initial Advisory Board members representing (left to right, front to back) Gulf Refining, Rex Oil, Smith Petroleum, Pure Oil, Gordon Oil, and Socony-Vacuum Oil. Photo courtesy of Clarke Historical Library Central Michigan University.

The act was modeled after the New Mexico law and in the minds of many included improved clauses. Dr. R. A. Smith, state geologist, was credited with not only writing many of the provisions but keeping the pressure on for passage from one defeat after another.

P. J. Hoffmaster, who had become director of the Department shortly before the law went in effect on May 3, 1939, held the first hearing with the advisory Board … and his first order fixed 10 acres as the base drilling unit and 200 barrels as the maximum production for a well in a prorated field.

Party affiliation does not seem to have been a factor in Act 61’s success in 1939 after having failed twice. That year both houses of the legislature were Republican-dominated, but a majority of Democrats in each house also supported it. However Republicans dominated in 1936 when according to MOGA an oil bill died, and Democrats dominated in 1937 when an oil bill also died.

Jerome Maslowski, the assistant atttorney general in charge of natural resources, described the run-up to enactment this way in 1970 in the Michigan State Bar Journal:

In the early days of our development the only statutory requirement was that well owners obtain a drilling permit before operations commenced, that wells be plugged under supervision and that well records be filed with the Geological Survey Division of the Department of Conservation. Due to episodes of flagrant waste in the Muskegon field, the oil and gas associations of Michigan and the Geological Survey Division concentrated on efforts to pass adequate legislation on control of oil and gas drilling and production procedures. Finally in 1939 the legislature passed Act 61, P.A. 1939, which, with minor amendments, serves as present authority to prevent waste in the drilling, completion, producing and plugging of wells for oil and gas. … The primary purpose of the statute is to insure that the fewest number of wells are drilled to recover the greatest amount of oil and gas.

William Reid Ralls, a professor at Cooley Law School, summed up the purpose in the Michigan Bar Journal in 1989:

Always keep in mind the “purpose” set forth in Act 61 of 1939: To conserve natural resources and encourage development of oil and gas. The Supervisor wants you to show that your plans for drilling or development will provide for the orderly development of petroleum reserves and that the most economic means of recovery will be used, which will result in as complete drainage as is possible from the affected pool or field.

Charles O. Galvin of Southern Methodist University Law School, and also an editor of the Oil and Gas Reporter, advised practitioners bluntly in the Wayne Law Review in 1961:

Despite the infinite variety of relationships devised to accommodate landowners, investors, and operators in oil and gas exploration and development, the underlying motivations in each case are the same: to find and convert dormant natural resources into usable economic wealth and to accomplish this activity with minimum tax and business costs and with minimum risks of litigation.

The Geological Survey Division in 1954 commented about the world war which followed Act 61’s passage:

Rapid expansion of military facilities and activities began shortly after passage of [Act 61] and the country was actually at war nineteen months later. Petroleum assumed a critical place in the war economy.

It is notable that on very few occasions has the judgment of the Supervisor … failed to agree with recommendations of the [Advisory] Board.

For a very short time after the legislation became effective a small segment of the industry, objecting to any measure of production control, offered opposition by deliberate violation of the orders of the Supervisor. Suits against producers of oil and against one pipe line purchaser shortly after the legislation became effective resulted in convictions in Circuit Court. No appeals were made. Few subsequent violations of rules, regulations, or orders of the Supervisor have been deliberate.

Fostering/maximizing of oil-gas is not unique to Michigan. In the same month of 1939 as Act 61, the state joined what is today called the Interstate Oil and Gas Compact Commission, of which 38 states are members or associates. The IOGCC charter states its single-minded purpose:

The purpose of this compact is to conserve oil and gas by the prevention of physical waste thereof from any cause.

The Commission shall have the power to recommend the coordination of the exercise of the police powers of the several States within their several jurisdictions to promote the maximum ultimate recovery from the petroleum reserves of said States, and to recommend measures for the maximum ultimate recovery of oil and gas.

The fostering policy of the federal government itself is quite similar to that of the IOGCC. It states:

The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, [and resource development, research, and waste disposal to lesson adverse impacts].

For the purpose of this section ‘minerals’ shall include all minerals and mineral fuels including oil, gas, coal, oil shale and uranium….

In its fostering role, the federal government is to prevent “unnecessary or undue” degradation of the land.

National antecedents to Act 61

Donald Ford’s 1932 article described oil-gas laws existing at the time in states around the country. He emphasized courts’ consternation in making decisions about these unusual “fugacious” substances, which nevertheless were so important. He added:

The result of existing legal rules is to force a mad competitive race of owners to extract the oil. Immediate extraction is the price of ownership. Rate of extraction is controlled, not by the rate of consumption or demand, but by the rate of discovery. To save the oil under his own property the surface owner is forced to drill more and more off-set wells in order that he may equal or exceed his neighbor’s production. … [M]arket demand is ignored. … Gas is wasted.

Ford listed five categories of legislation nationally:

  • Statutes governing the casing and plugging of wells, to prevent water from entering or leaving the bore.

  • Statutes to prevent waste of gas and oil. In Ohio Oil Co v Indiana, a celebrated case in the US Supreme Court in 1900, Indiana law prohibited escape of oil or gas into open air for more than two days after striking oil or gas. The defendant Ohio Oil (later to become Marathon Oil, the largest oil-gas leaseholder in Michigan today) defied the law for periods up to nine months because it was seeking oil not gas. But gas pressure was necessary to lift the oil, even though after the lifting, the gas escaped. The state argued that escaping gas would eventually destroy the large gas pool which underlay several counties in the area, on which hundreds of thousands of people depended for light and fuel. The court characterized the company’s argument this way:

    Hence, it is said the law, by making it unlawful to allow the gas to escape, made it practically impossible to profitably extract the oil. That is, as the oil could not be taken at a profit by one who made no use of the gas, therefore he must be allowed to waste the gas into the atmosphere, and thus destroy the interest of the other common owners in the reservoir of gas.

    The court recognized the fugacious character of oil and gas, said the many surface owners over the pool other than Ohio Oil have a co-equal right of access to the common supply, and held waste was an injury to all of them. The oil company lost.

  • Statutes to restrict the purposes for which gas may be used. Examples were bans such as Michigan’s on the burning of gas in flambeau lights (torches) and the use of gas in the manufacture of carbon black (a material produced by incomplete combustion of heavy petroleum products).

  • Statutes to regulate the manner of taking, storing, and operation. The earliest legislation in this group made it unlawful to use a pump or other artificial process to increase the flow of natural gas. Ford tells us for instance that Michigan had a regulation forbidding use of vacuum pumps except for casing-head gas or a depleted field, and a statute requiring wells to be located at least 200 feet from outer boundaries.

  • Statutes to “prorate” (or limit) the amount of taking. These were the most controversial. According to Ralls, as a general rule, the more slowly a reservoir is pumped, the more efficiently it is drained. According to today’s DEQ administrative rules, one of proration’s goals is to “maximize oil and gas recovery.” Ford noted the definitions of proration were not nationally uniform. Some statutes (like Michigan’s) limited taking to a percent of the daily natural gas flow. Some limited it according to what was thought to be an optimum oil-gas ratio. Some curtailed production if it was thought to be economically wasteful.

    In answer to a contention that prevention of economic waste (as a Michigan statute did) amounted to price-fixing Ford justified it this way:

    Proration so as to secure a fair return to oil producers seems to satisfy the test of a valid exercise of the police power, whether the test be phrased in terms of public interest or of reasonableness. As to the public interest, the industry is monopolistic in its character, and has a tremendous hold upon our economic life. As to its reasonableness, the curtailment legislation falls uniformly on all producers; it stabilizes a great industry; it conserves an exhaustible natural resource. In short, even if curtailment were to be used as a price-fixing device, it should be sustained if the prices fixed were reasonable, as the oil industry seems to be sufficiently affected with a public interest.

Of the five categories, Ford argued that proration was the only one that struck deeply into the problems. But even proration:

does not accomplish enough. Proration can only, in a limited degree, give an opportunity for the scientific development of an oil pool. There is no necessary relation between proration (based on market) and the engineering problem of controlling the rate of flow so as to conserve gas energy and control water drive. No mere scheme of proration will curtail excess drilling and eliminate the cost of unnecessary offset wells. Nor will it insure the proper location of the wells on the geologic structure so as to obtain maximum recovery. The solution which promises most in relation to production problems is unit operation.

Unit operation means simply that all the properties in a pool shall be consolidated into a single producing unit. Competition in production is entirely avoided and the maximum recovery from the reservoir is secured.

Thus according to Ford, unit operation (also known as unitization) would solve the industry’s problems.

The distinction between unitization — which is governed by a different part of NREPA, “part 617” — and pooling under Act 61 is not particularly clear. Both can be done either by mutual consent of the interest owners, or can be forced by DEQ. Ralls says unitization “is essentially forced pooling” for certain types of operations. This is a bit oversimplified. The environmental section of the Michigan State Bar explains the nuances here. See also the discussion of compulsory pooling below.

Ford said unitization is justified on the theory that

The thought is growing that mineral deposits, so slowly accumulated by nature are the heritage of all the people and are not to be exploited exclusively for private gain, or that if the exploitation is left in private hands it must be done in trust for the public.

From the public point of view the foremost object should be to obtain the maximum recovery of oil from each pool.

He added that voluntary unitization however was problematic:

There is nothing in the law today that prevents the collective owners from consolidating their interests for the purpose of unit development, except perhaps a fear of the anti-trust laws. And there are splendid examples of cooperative development in the United States. … Unfortunately, these cooperative agreements have been the exception, rather than the rule. The reasons are obvious. The big practical difficulty in the way of such a movement is human greed.

So forcing unwilling interest owners into units and pools was considered necessary.

None of the reasons advanced for proration, unit development, pooling, or unitization was environmental. True, one environmental result of these was fewer wells and therefore less disruption of the surface. But that was driven by the real motivator, greater production.

Michigan antecedents to Act 61

A 1931 article by Boice Gross in the Michigan State Bar Journal described Act 61’s antecedents in Michigan. In the early years the state

did not consider it necessary to enact many laws and that those it did adopt are not unduly detailed. The legislature did not desire to over-regulate and thus possibly discourage the development of the infant industry.

Michigan statutes were of three types, none of which implicated proration or unit operation. One imposed a severance tax, being a percent of the gross value of the oil and gas which was paid to the state. Another applied to pipeline owners, declaring they were common carriers who could not discriminate among potential customers.

The last, thought to “prevent waste and protect the public interests,” provided for a Supervisor of Wells, for inspection where necessary to safety, and for issuance of permits to begin drilling and to abandon wells, and an appeal board. This law was repealed and replaced by Act 61 in 1939.

Michigan court decisions: Act 61 balances the environment and harvesting of hydrocarbons

Two Michigan court decisions have rejected industry appeals of permit denials, appeals which argued that the sole purposes of Act 61 and “Construction of Part” were to favor drilling. The court reasoning was different in each case.

In Michigan Oil Co v NRC, through intermediaries an operator had acquired from the state a mineral lease for a 40-acre site, Corwith 1-22 located in the Pigeon River Country State Forest, for approximately $2.06/acre. DNR and NRC refused to issue a permit despite a finding that operator actions of clearing the location, bringing in machinery, installations, and personnel, and drilling would have been done carefully and prudently. The Corwith area had many pre-existing public and private uses including camping, snowmobiling, hunting, and timber harvesting. These non-oil-gas activities disturbed elk, bear, and bobcat. But the result of drilling would have been a reduction in their range, habitat, and population. The agencies denied a permit on that basis.

The Court of Appeals affirmed:

We conclude that the construction given to the term waste by the [NRC] … is the correct one and that the very acts of drilling for oil may constitute or result in waste prohibited by [Act 61].

At the Michigan Supreme Court the oil company argued that the court should declare that the purpose of Act 61 was just to protect oil and gas, not protect the environment. They argued the act empowers the agencies only:

to withhold issuance of a drilling permit to prohibit waste which is unnecessary to the production of oil and gas. The statute, therefore, would impliedly protect any and all other waste, no matter how serious, if necessarily incidental to the production of oil and gas. According to the [oil company], the clear import of [Act 61] was not to conserve the environment in general but to conserve only oil and gas so that they are efficiently extracted.

The court rejected this and again affirmed denial of the permit. But among the seven justices there was no majority opinion. A three-member plurality noted the pre-1973 definition of “surface waste” but declined to rely on it, or its inclusion of the phrase “as those words are generally understood in the oil business.” Rather the plurality focused on “waste” in its general “ordinary” meaning and said waste:

includes any spoilation or destruction of the land, including flora and fauna …. Serious damage to the wildlife of Corwith 1-22 resulting from oil drilling is spoilation or destruction…. Conservation should not be read to apply only to the efficient extraction of oil, but should include the efficient extraction of oil which simultaneously conserves the other natural resources (flora and fauna) of the state.

To the operator’s contention that at the time it applied for the permit no rules or regulations existed which prevented unnecessary destruction of wildlife, the three-member plurality answered Act 61 required the agencies

to prevent waste, including serious or unnecessary damage to or destruction or wildlife, even in the absence of specifically promulgated rules and regulations.

A concurring justice said simply he would have affirmed the reasoning of Court of Appeals. That made four justices for denial of the permit, albeit with differing rationales.

The three dissenting justices argued that no waste within the meaning of Act 61 had been established, because the operator had acquired a mineral lease from the state and intended to exercise it prudently and carefully; and the primary purpose of Act 61 is conservation of oil and gas to assure maximum production. As to waste in its “ordinary” meaning, highlighted by the plurality, the dissenters answered:

Although use of the surface of the land by the lessee [oil company] results in death and injury to wildlife belonging to the lessor [landowner], such use is not waste within the “ordinary meaning” of that term if it is reasonably necessary for oil and gas operations. A lessee [oil company] does not abuse or misuse the estate granted when it carefully and prudently exercises the rights specifically granted to it.

There being no majority opinion, the Michigan Oil decision is not a binding precedent. But the 2014 decision of the Court of Appeals in Schmude Oil v DEQ, another Pigeon River case, was unanimous and binding. Schmude Oil held (without citing Michigan Oil):

The language in NREPA that deals with oil and gas production seeks a balance between Michigan’s interest in protecting the environment and its interest in harvesting valuable hydrocarbon resources. [Construction of Part does not express], as petitioners argue, a clear public policy favoring drilling.

The dissenters in Michigan Oil had given a nod to the environment: they recommended a remand to consider the facts under a separate law, the 1970 Michigan Environmental Protection Act (MEPA). MEPA, which our 1963 constitution required the legislature to enact, protects “air, water, and other natural resources and the public trust in these resources.” Under MEPA courts have overturned DEQ oil-gas permits.

But Schmude Oil and the other judges and justices in Michigan Oil reasoned solely from the language of Act 61.

Compulsory pooling: a practical effect of “Construction of Part”

Apart from Act 61’s overall ideology, there is one area where the Supervisor has held that fostering and maximizing production has an explicit effect on decisions: compulsory pooling — also known as statutory pooling — of unwilling interest owners. Act 61 says this type of pooling is allowed where

the smallness or shape of a separately owned tract or tracts would … otherwise deprive or tend to deprive the owner of such a tract of the opportunity to recover or receive his or her just and equitable share of the oil or gas and gas energy in the pool.

The state compels owners into pooling only after voluntary pooling has been attempted and failed. Jerome Maslowski observed in his 1970 article: “If a land owner does not pool voluntarily, he usually is subject to a penalty.”

Petition of OIL Energy Corp (Kearney Township Antrim County) was a DEQ pooling decision in 2011. In a 1454-acre unit, owners of 144 acres had declined to lease to the oil company. Assistant Supervisor Harold Fitch gave three reasons for compelling pooling and allowing horizontal drilling under the land of the declining owners. The first reason of course was just and equitable sharing cited in the above-quoted pooling subsection of Act 61.

Assistant Supervisor Harold Fitch, MOGA President Frank Mortl, Governor John Engler, MOGA Chairman Greg Fogle, and DEQ Director Russell Harding, on the occasion of IOGCC’s 2002 Environmental Excellence award to the Michigan Natural Resources Trust Fund. Photo courtesy of Clarke Historical Library Central Michigan University.

But that subsection does not reference Fitch’s other two reasons: (a) “prevention or minimization of surface waste by fewer surface locations” and (b) “the ultimate recovery of natural gas can be increased and drilling through unleased tracts will assist in avoiding the drilling of unnecessary wells.” The two are inspired by the Schmude Oil view of “Construction of Part,” in seeking to balance protection of the environment and maximization of hydrocarbon resources.

Compulsory pooling means that mineral owners of land in an oil-gas pool – including those who oppose oil and gas on principle and don’t want the money – have no option but to surrender to a profit-making private industry. This was what happened to pooled oil-gas opponent Lorie Armbruster in Washtenaw County, cited by the Ann Arbor News in July 2013:

With horse pastures, a hay field, a garden and woods on her own property, Armbruster said she enjoyed the farm smells and activities nearby. Cow manure doesn’t bother her, she said, and the rumble of tractors and farm equipment was a comforting sound.

The addition of drilling rigs — 24-7 operations for about a month to install a new oil well across the street — and the associated large trucks carrying gravel for new roads — have turned her agricultural haven into an industrial site, Armbruster said.

A flare installed at the oil well across the street to burn off natural gas that can’t be captured from the well has also proved to be the biggest nuisance, she said. The smell of gas burning wafts into her home if the wind is blowing from the southwest —causing her to shut her windows and stay indoors.

“It’s farmland and their property and they were allowed to do whatever they wanted to it,” Armbruster said of her neighbors. “And we were very good friends with them so I didn’t say anything … I didn’t complain and once the flare started I still didn’t want to complain — but we’ve been suffering and other neighbors too — and it’s like, what can you do? It’s there; it’s there legally.”

In addition to the gases being released through the flare, Armbruster said she’s concerned for the future safety of her water well in her front yard should drilling activities or spills from crude oil transportation contaminate it.

In answer to those like Armbruster who have to “accept oil or gas development which they oppose for economic, environmental or aesthetic reasons,” James R. Neal, a past chair of the State Bar Oil-Gas Committee, argued in the Michigan Bar Journal in 1999 that compulsory pooling is successful:

Michigan’s declared policy is to foster the development of its oil and gas natural resources “with a view to the ultimate recovery of the maximum production of these natural products.” Those who want to capture the oil and gas beneath their land are entitled to do so, but their efforts are subject to Michigan’s declared policy and regulatory implementation of that policy.

The role of compulsory pooling in this regulatory scheme has been to preserve drilling units. The practice successfully balances the rights of those desiring to develop their oil and gas interests against the wishes of other owners who either oppose development altogether, or who oppose development on economic terms other than their own.

Neal conceded that no published Michigan court decisions address the constitutionality of compulsory pooling, but argued it is like zoning. He noted a 5-4 Oklahoma decision, Palmer Oil Corp v Phillips Petroleum Co, which upheld the constitutionality of a pooling statute like Michigan’s, in 1951.

But does Palmer Oil address Armbruster’s concerns? It involved the large 3700-acre “West Cement Medrano” unit in Caddo County, an area very different from hers. There were about fifty wells producing oil and gas on 72 separate ownership tracts with several hundred royalty interest owners at the time of the protested pooling order, while additional wells were in the process of being drilled. The object of the Oklahoma pooling statute was

that a greater ultimate recovery of oil and gas may be had [from the unit], waste prevented, and the correlative rights of the owners in a fuller and more beneficial enjoyment of the oil and gas rights[] protected.

The statute allowed a majority of the interest holders to initiate a compulsory pool.

The objectors were lessors, lessees, and royalty owners. They made no environmental arguments, such as danger to animal or plant life, water or air quality, or climate.

As to any objector who simply didn’t want to participate in the oil business, the four dissenting justices in Palmer Oil noted their opponents’ astonishing answer: “the taking resulted in no loss to the owner, but, on the other hand, resulted in gain to him.”

The dissenters, citing federal precedent, taking care not to dispute principles of well spacing and proration, and noting that issues of water drainage districts are not analogous, labeled regulation by a majority of interest holders over the affairs of an unwilling objector “obnoxious.”

Michigan should stop fostering the oil-gas industry

Like Charles O. Galvin, the state of Michigan wrongly assumes that for everyone – landowners, investors, and operators – “the underlying motivations in each case are the same”: acquisition of “usable economic wealth” with minimum tax, litigation, and business costs.

Because DEQ fosters the industry, it is a captured agency — one that advances the concerns of the special interest group it is charged with regulating. Capture is normally frowned on and the captured regulators often deny it. But far from denying, the Michigan legislature is proud of it.

The obvious first option for reversing it of course is political action and lobbying of elected decisionmakers. But with current officeholders there is little hope. On February 13 Governor Rick Snyder keynoted an all-day “Governor’s Summit on Extractive Industries” in East Lansing. MOGA announced the goal was to promote and showcase extraction companies. Over 200 attended. For legislators and staff, the $50/plate event and lunch were complimentary.

Leading committee members of the House and Senate opened the meeting. It was co-sponsored by MOGA, whose chairman Joel Myler sat on the opening “extractive industries 101” panel. Harold Fitch, the assistant Supervisor of Wells, sat on the second panel. Attendees watched this video.

Four days earlier, this writer contacted the governor’s office through his website, provided the link to this article as originally posted on February 3, and asked this question:

Do you agree that production of oil and gas exacerbates global warming which can lead to world-wide catastrophe, and if so how do you square that with Michigan’s policy expressed in MCL 324.61502 that DEQ regulators are to ‘foster’ the oil-gas ‘favorably’ and ‘maximize’ oil-gas production?

He has not responded.

The more promising option is to call public attention to the fostering/maximizing issue and then for public action. The issue dovetails with the related issue of fracking — the modern version of what the Saginaw developers did with exploding nitroglycerine in the 1920s. Today the lion’s share of US climate-changing oil-gas production is developed with fracking completion methods, particularly in horizontal wells.

Polls show majorities oppose fracking nationally and in Michigan both among local officials and voters.

Our state has a long history with vertical fracking. As the Center for Local, State, and Urban Policy explained in 2014 it has been used in Michigan since the 1940s:

However, this earlier hydraulic fracturing was undertaken with vertical drilling only and relatively small volumes of water usage. More controversy has grown recently around the use of high-volume hydraulic fracturing, which uses horizontal drilling to expand the underground area that can produce gas or oil, but which also requires much higher volumes of water, and produces higher volumes of used “fracking fluid” mixtures that must be disposed of somewhere. All of these factors have raised potential health and environmental concerns. In Michigan, the issue of fracking has seen a marked increase in attention.

Since 2015 the Committee to Ban Fracking in Michigan (CBFM) has undertaken a statewide ballot initiative to ban horizontal fracking and acidizing and their wastes. The initiative is known chiefly for that language. It would also include the substances involved in horizontal fracking in the definition of prohibited waste. The exact language is here.

The initiative is motivated by public health and environmental concerns in addition to climate.

But a sleeper issue of the initiative has drawn little public attention. In the opinion of this writer it is the more important issue. The initiative language would amend “Construction of Part” to delete the fostering/maximizing policy. As amended the statute would say:

It has long been the declared policy of this state to foster conservation of natural resources and to provide for the protection of the air, water, and other natural resources from pollution, impairment, and destruction. In past years extensive deposits of oil and gas have been discovered that have been extracted using wells through which oil or gas flowed naturally or was pumped to the surface. The recent uses of high intensity horizontal hydraulic fracturing and acid well stimulation and completion treatments are different and typically include injections of large amounts of water, solvents, acids, and other chemicals to fracture or dissolve underground formations horizontally, the consequences of which pollute, impair, and destroy our water resources, land, air, climate, and public health. The interests of the people demand that the exploration of oil and gas shall not be done at the expense of the natural environment and human health. It is accordingly the declared policy of the state to protect the interests of its people and environment during gas and oil development. This part is to be construed liberally to give effect to sound policies of conservation and the prevention of waste and exploitation, and to protect water resources, land, air, climate, human health, and the natural environment.

The language would not change the subsections of Act 61 which declare unnecessary wells as “waste.” The statute would continue to provide for proration and drilling units.

Unitization would not be affected.

Nor would there be changes regarding compulsory/statutory pooling. The process would continue as before, with decisions based on owners each getting a “just and equitable share” of the oil or gas. The Supervisor could continue considering prevention of waste.

But instead of fostering the industry and maximizing production, decisions under Act 61 would now highlight values consistent with the Michigan constitution:

The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.

This is apt, given that the Supervisor of Wells is the Department of Environmental Quality.

More generally, a new view would replace the old one in all manner of DEQ judgments and decisions ranging far beyond compulsory pooling.

Should the CBFM measure succeed, the governor could not veto it, nor could the legislature amend or repeal it except by a ¾ vote in both houses.

By thinking globally and acting locally, Michigan will have made its own contribution to forestalling or preventing climate change.

Notes, legal sources, photo credits

As mentioned above, IOGCC has 38 member states. Most or all of them have policies embedded in their statutes and regulations similar to Michigan’s “Construction of Part.” An article similar to this one could be written for each state, using sources arising in that state.

Underlinings in quoted materials above are added. Footnotes in quoted materials are omitted except for the “in trust for the public” paragraph which was in a footnote of Ford’s, quoting another author.

Quoted legal articles:

Photographer credits: unknown. The Clarke Library notes that almost all its photos were taken from the files of the Michigan Oil and Gas News (MOGN) or the private collections of two long-time editors of the MOGN, Norm Lyons and Jack Westbrook.

EPA blasts DEQ application for injection well primacy, as Michigan taxpayers pump more money to DEQ

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by Ellis Boal

 

Class II injection Well, Wyles Howard, Holmes County, Ohio, with 181,513 barrels of fracking waste having been processed between Q3-2010 and Q1-2015. Photo courtesy of FracTracker.

The US Environmental Protection Agency (EPA) has rejected a draft application of Michigan’s Department of Environmental Quality (DEQ) to take control of regulation of the state’s oil-gas waste injection wells, Ban Michigan Fracking (BMF) learned recently via an information request to EPA.

The DEQ draft failed to “demonstrate” that its proposal would be “effective … to prevent underground injection which endangers drinking water sources.”

According to a polite cover letter of last January, EPA’s two “fundamental” concerns were that DEQ would provide less protection than EPA and the wording of DEQ’s draft was illogical:

EPA’s first concern is that certain Michigan regulatory provisions limit effective protection of USDWs [underground sources of drinking water]. Of particular concern is Michigan’s definition of “fresh water.” It is narrower in scope than the federal definition of USDWs….

EPA is also concerned about a number of inconsistencies and unclear descriptions in the draft application which prevent a clear understanding of the proposed program and introduce legal or technical ambiguity.

By contrast, for Kentucky this spring EPA approved primacy.

The DEQ drafts

There are about 1300 injection wells for oil and gas operations in Michigan, 900 of which are for waste disposal and the rest for what is called “enhanced recovery.”

These are called “class II” wells. Currently both DEQ and EPA have to sign off on any new class II permit, but DEQ is seeking what is called “primacy”: it would have sole power over decisionmaking and enforcement of the federal Safe Drinking Water Act in regard to class II, with but little EPA oversight.

DEQ’s August 2015 draft to EPA was actually a second draft. Previously we reported that in November 2014 DEQ had asserted it was “well equipped” for primacy, and claimed a “record of accomplishment for excellent environmental protection” and “good customer service” to the public. In the same paragraph it misspelled the adjective for “climate”: “climactic.”

A month later in December it held a secret “public hearing,” which is when it gave EPA the first draft.

Our article noted the secret hearing and the 2015 second draft. In 2015 DEQ and EPA were reeling from disclosures they had both dropped the ball in protection of Flint residents from lead in their drinking water.

We outlined the well-known history of failures of all well casings, whether or not they are inspected and regulated rigorously. We also noted DEQ’s separate admission of inadequate regulation of gas storage wells. (Michigan has more active storage fields than any other state.) We cited big protests against injection wells in three Michigan townships, to which one more can now be added in Johnstown Township Barry County in April 2017.

BMF filed objections to the first draft on several grounds, highlighting the DEQ definition of “fresh water,” and noting that for primacy approval DEQ would first have to change its administrative rules. Changing the rules is a lengthy process involving a draft, a public hearing, and approval by the state regulatory office plus two different legislative committees. Rule changes can take a year or more.

 

Class II injection well, Baughman W & Lucas C, Morrow County, Ohio, with 103,360 barrels of fracking waste having been processed between Q3-2010 and Q1-2016. Photo courtesy of FracTracker.

Also commenting on the first draft was petroleum geologist and writer Lee Smith. Among other things Smith questioned that state funding was insufficient without increasing the surveillance fees collected from oil and gas producers. He noted that DEQ was proposing to add only one new position to coordinate the injection program rather than four. Four would be comparable to the EPA-approved primacy program in Ohio.

(The wells pictured in this article are in Ohio. The Ohio Department of Natural Resources (ODNR) has its own primacy problems, one being “capture” of the agency by the oil-gas industry and another being an ODNR attack on “eco-left pressure groups.” It named the Sierra Club and Natural Resources Defense Counsel as examples.)

EPA’s blast

According to the cover letter of the EPA rejection in January, the two agencies had exchanged phone and email correspondence and had a meeting in EPA’s Chicago office.

The cover letter was accompanied by two detailed attachments, totaling 77 pages. The attachments mentioned the Michigan attorney general had participated in the conversations about some of the points below. Noting that “public input and hearings have been an area of public interest on Michigan wells during the last 5 years” (the period BMF has existed), the attachments specify several defects and inconsistencies including:

  • Certain “crucial” technical requirements are legally unenforceable, because they are not spelled out in DEQ’s administrative rules or in part 615 (DEQ’s oil-gas statute), but only in the draft application. Examples include requirements for chemical analyses of new brine sources “as they are added,” minimum cement casing conditions, and existence of surface casing. For EPA approval DEQ should have adopted legal requirements for “protecting USDWs from endangerment by injection operations.”
  • The administrative rules’ definition of class II wells does not “does not include wells used for hydraulic fracturing activities where diesel fuels are used,” as it should. Hydraulic fracturing “is a form of enhanced recovery.”
  • The rules require no information about the injection intervals’ confining zones.
  • The draft application language on mechanical integrity is “difficult to follow.”
  • Suspension of well operations in case of a violation and threat to the public would be limited to 21 days in the draft application, even though in EPA’s experience return to compliance by an operator after a violation can take more than 21 days.
  • The draft application uses the terms “fracture gradient” and “fracture pressure” interchangeably “although they are different physical parameters.”
  • “[S]ome Michigan rules may strongly limit input or place a high documentation burden on people in order to petition for a hearing.”

Fewer staff, increased work, more danger

The EPA letter was last January. According to DEQ manager Adam Wygant in April, “Michigan seeking primacy is still in [the] works, there will likely first be some changes to Part 615 Administrative Rules.”

But DEQ has no primacy-related rule changes listed in its regulatory plan for the year ending June 30.

Even if it proposes rule changes for the next year, given Smith’s comments about staff and funding, how could DEQ take on the additional workload? According to Midwest Energy News in April, DEQ says a hiring freeze is in effect for the oil-gas program, staffing levels have dropped 18% from a few years ago, and it expects to cut back on well inspection rates.

DEQ has less money because oil-gas production has been down. Most revenue for oil-gas surveillance comes from a percent DEQ gets of operator production. Hal Fitch, director of DEQ’s oil-gas operations, admitted an ethics issue, Midwest Energy News reports, at least in regard to incentives:

Some would say if (industry) is paying for it then our agency is beholden to the industry — I’d argue that’s not the case — and if we’re dependent on a fee for production then we have an incentive to increase production regardless of impacts.

Reduced staff and funding theoretically should mean reduced permitting. Instead, even without primacy DEQ’s workload is increasing. Plugged wells like producing wells require oversight. As noted above, eventually they leak. Abandoned operations can be dangerous. The fatal gas explosion in a house in Colorado in April was caused by an abandoned pipeline from a nearby well.

Michigan has 35,000 shut wells, and they don’t produce oil, gas, or jobs. The number of shut wells is constantly increasing. The reason for so many wells is the state’s statutory policy, on the books since 1939, requiring DEQ to “foster” the industry “favorably” and “maximize” production. In other words the more wells — and eventually the more abandonment — the better.

(The foster-the-industry policy will evaporate when the initiative campaign of the Committee to Ban Fracking in Michigan succeeds.)

 

Danny Long & Sons SWIW #9 & #12, Stark County, Ohio, with 22,486 barrels of fracking waste having been processed between Q2-2014 and Q1-2016. Photo courtesy of FracTracker.

Reduced inspection rates at the same time as increased workload? Unions used to call this “speed-up.” And it is a recipe for disasters like what happened in Colorado. After decades, the chickens are coming home to roost.

Taxpayers subsidizing the oil-gas industry

Midwest Energy News also reported that Michigan lawmakers recently have been “subsidizing oil and gas development.” Last year they approved a $4 million infusion into the DEQ oil-gas program from the taxpayer-supported general revenue fund. A similar transfer is expected for this year. This is above and beyond the surveillance fee assessed to the industry.

According to the annual regulatory plan, conformance bond amounts for operators haven’t risen in over 20 years, and DEQ is considering an increase.

But a bond increase won’t be enough, particularly if DEQ manages to change its administrative rules to EPA’s satisfaction to get primacy over oil-gas injection. If bonds now and in the past actually were high enough, lawmakers would not be considering a taxpayer subsidy.

Michigan taxpayers should not subsidize a single dime for climate-changing oil-gas production. Nor should matters be made worse by subsidizing the disposal of oil-gas waste here.

Michigan Foia law protects secrecy of permits for gas-oil wells disguised as mineral wells

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by Ellis Boal

On March 16 the Michigan court of appeals rejected an appeal of a FOIA information case brought by landowner Gary Cooley and Ban Michigan Fracking about a supposed “mineral well” in Crawford County. Though not questioning their standing, the court held plaintiffs had not stated a proper claim of right to information.

D4-11, October 6, 2016. Photo: LuAnne Kozma.

Plaintiffs had sought the environmental impact assessment (EIA) and other information about this well drilled in the state forest a mile from Cooley’s property in Beaver Creek Township.

In 2015 Cooley, who opposes gas-oil development in the state forest, refused an offer to lease the gas, oil, and minerals under him. The offer included a signing bonus and a royalty interest.

Typically the requested documents are voluminous, sometimes running to over 100 pages. In particular the EIA has information about water wells, wetlands, surface waters, endangered species, pad facilities, soil erosion, and disposal of fluids and brines at or near the wellhead. These are items of interest to any nearby landowner.

“D4-11″

The applicant for the well was Marathon Oil, which owns nearly 1000 square miles of leases in Michigan under state land. The name of the well is “Beaver Creek D4-11,” or just “D4-11.” In June 2015 Marathon applied for a permit under “part 625,” the state’s law for mineral wells.

The only evidence D4-11 would actually be a mineral well and not a gas-oil well was a non-notarized “x” in a box on page 1 of Marathon’s application form. (This page is the one document which Marathon had to make public.) According to the instructions for that form, the application was supposed to have described in detail the well’s “purpose.”

According to the same page 1, D4-11 was to be a non-exploratory vertical mineral “test well,” and the drill rig would target the “Amherstburg” formation at 4700 feet. (DEQ provides for the possibility of horizontal wellbores and fracking on a different form for mineral wells.)

DEQ granted the permit on an unknown date.

The drill rig had seen service in oil-gas exploration in North Dakota a thousand miles away before coming to D4-11. The nearly-200-foot-tall rig must have cost Marathon millions to transport and operate. Marathon Oil is in the oil-gas business. In September a worker on the rig told a visitor, me, the company hoped to find gas or oil. A blowout preventer was left in place after the rig departed D4-11, a practice required only by the gas-oil rules, not the mineral well rules.

An official DEQ brochure states there are no minerals anywhere in Crawford County.

These and other facts indicated that D4-11 would be a gas-oil well, not a mineral well. Part 625 does not define “mineral.” But in ordinary English minerals are understood to be hard, crystalline, and inorganic, which gas and oil are not. Minerals are extracted by mining but gas and oil are extracted by drilling. And the idea of testing a mineral in a 4700-foot hole is ridiculous.

I published a video and the story of the investigation here.

DEQ rules for gas-oil wells prohibit nuisance noises, but the rules for mineral wells do not.

And unlike for gas-oil wells, FOIA has a confidentiality period lasting 10 years for mineral well data including the permit and EIA. But legally it is the DEQ which has the burden of proof to show the exemption applies.

DEQ answered the FOIA request by denying all information. Relying on the 10-year mineral exemption it refused to say even whether it had actually issued a permit.

Marathon itself was similarly close-mouthed, except by email it did admit there was a permit.

Plaintiffs sued in February 2016. In its responsive motion in May, DEQ finally admitted there was a permit. But it did not provide the date or a copy.

The practice of gas-oil companies which claim mineral well treatment

Later that month I chanced on an article about the work of William Harrison of Western Michigan University, an author of 35 technical papers on Michigan geology. I decided to email him, outlining the theory of the FOIA case, and the evidence showing D4-11 is probably a gas-oil exploratory well not a mineral well. I invited him to view our video of the drill rig, said I would drop the case if D4-11 proved to be a legitimate mineral well, and asked him to respond.

He did, the next day, very helpfully:

Wildcat exploratory wells for oil and gas have often been drilled under the State “Mineral well act” so that a company can gain information about the geologic deposits in that area with out releasing the information to the public and hence their competitors.

I do not have any specific knowledge about the Marathon well you mentioned, but the area in Beaver Creek Township is a well-known oil and gas region with an old very large oil field there called the Beaver Creek Field. The Amherstberg formation is a known oil and gas producing zone in other parts of the state and is very likely the target zone they were evaluating.

The naming of the well “Beaver Creek D4-11″ is also a very common naming style for oil and gas wells. As far as I know other mineral wells that are looking for solid minerals do not use this type of naming convention.

The Amherstberg is not a formation that contains Salt, Potash or any other type of solid minerals that could be produced commercially, so I am reasonably confident that this was an exploratory well for oil and gas that was drilled under the Mineral Well Act

(underlining added)

There was one statement in Harrison’s response, a legal point, that I knew to be wrong:

In fact, oil and gas are considered “minerals” under the definition of that type of well.

He was wrong because, unlike at the Department of Natural Resources, at DEQ there is a strict separation between mineral wells regulated under part 625, and gas-oil wells. The latter are regulated under part 615.

As plaintiffs explained to the court later — in addition to highlighting the DEQ brochure which says there were no minerals in Crawford County — gas and oil are not considered “minerals” at the DEQ. Part 625 excludes gas and oil because gas and oil come under part 615. Even if the purpose of a well is only partially to explore for gas or oil, there must be a 615 permit.

Neither the DEQ’s court brief nor the court’s opinion disputed our contention that gas and oil do not qualify as “minerals.”

I responded to Harrison the same day with documents including Marathon’s page 1, and noted his error about the DEQ definition of “mineral.”

I asked if he would write me a separate letter affirming the opinion just expressed, that the Amherstburg is not a formation that contains solid minerals that could be produced commercially, and therefore he was “reasonably confident” that D4-11 was an exploratory well for oil and gas that was drilled as a mineral well to “maintain confidentiality.” I said this would likely suffice to win the case. I gave information about myself, and offered to pay his regular rates.

He responded the same day:

I am not interested in any consulting work for you or your client.

Rather, he said he provides “basic general information” to the public and is “not involved in any of the regulatory decisions.”

Translated: His practice is not to testify as an expert witness, not for anyone including the industry. I believe him but was surprised he wouldn’t repeat something in court that he had just told me, a stranger, for free.

Later I realized how tied in he is to DEQ and the industry. Last June he joined DEQ’s industry-dominated oil and gas advisory committee. The committee, composed of the “stakeholders,” is supported by several DEQ staff. Last month the Michigan Oil & Gas News pictured him with his wife as “silver medal sponsors” of the annual petroleum conference of the Michigan Oil & Gas Association (MOGA) and Northern Michigan American Petroleum Institute.

Surely everyone else on the DEQ advisory committee knows what he knows, that exploratory wells for gas and oil have “often” been drilled as mineral wells to get geologic information and then kept secret. Surely the rest of them know what he does not, that oil and gas are not DEQ-defined minerals and the oft-repeated claims of mineral well applicants — that their “purpose” is just to test “minerals” but not explore for gas and oil — are false.

Proceedings of the FOIA suit

Harrison’s encouraging emails were not confidential. I would have been free without his permission to quote them and his credentials to the court. But I decided to respect his desire to stay out of it.

The suit made two claims for opening the DEQ files, one of which we dropped when we filed at the court of appeals. (That one had contended that even if D4-11 actually were a mineral well, under a literal reading of the statute, except as to “logs” the confidentiality period applied only “during” the period after the well was “completed,” and D4-11 hadn’t yet been completed on the date of the FOIA request.)

As to the claim that D4-11 was not actually a mineral well, and therefore mineral well confidentiality should not apply, plaintiffs pointed out that the DEQ website links to the dozens of forms which it uses to question applicants for mineral wells. None of the forms asks the applicant whether the well will actually test a mineral. None of the forms asks the applicant to name the mineral it proposes to test.

Stated otherwise, as plaintiffs’ brief did (without citing Harrison’s insightful words):

Plaintiffs have no facts to contend that DEQ and Marathon arranged a sweetheart deal to keep this particular well secret. Rather it appears from the 64 DEQ forms that it never asks any operator who is testing minerals known to be present –- as opposed to exploring to see whether they are present –- to demonstrate the point. If so, DEQ invites a train of abuse from industry operators desiring to maintain secrecy by falsely stating their objectives while not under oath.

The DEQ brief responded:

In other words, even if Mr. Cooley’s allegations of deception on the part of Marathon were factually meritorious … this alleged “deception” would not be illegal.

In reply plaintiffs stated:

to qualify as a mineral well the operator’s intent at the start can only be to explore for or test minerals. In this case the operator’s stated intent was not to explore for a mineral, but to test one…. But … the Marathon safety man’s expression of hope that the company would find gas or oil at D4-11 means in the most literal commonsense sense that the company was “exploring” for gas or oil.

The court ruled on March 16. The unpublished opinion recited none of the facts indicating that D4-11 was actually a gas-oil well except it did acknowledge the claim that Marathon hoped D4-11 would find oil. The court also acknowledged that a plaintiff’s well-pleaded factual allegations have to be accepted as true at this stage, and DEQ had the burden to prove that any exemption for mineral wells under part 625 applied.

At oral argument plaintiffs had noted Marathon’s hope that D4-11 would find oil was not a fact critical to the case, and based on all the other facts, the case would be just as valid had the rig worker not made that admission.

The complaint and exhibits had shown that D4-11 would be a test well not an exploratory well, no minerals exist in Crawford County to even be tested, DEQ excludes gas and oil from its definition of “minerals,” DEQ relied solely on Marathon’s checkbox and did no independent investigation of minerals at D4-11, and the Amherstburg is a formation where Michigan oil prospectors have frequently looked. These facts showed “a good circumstantial case,” the brief said.

But even if these facts were all true, the court held, the exemptions of part 625 still applied. The case ended.

The decision amounts to a ruling that even if DEQ rightly should have processed D4-11 as a gas-oil well under part 615, the fact that it did process it as a mineral well under part 625 controls, and the exemptions to FOIA apply.

What should a landowner do?

Anyone can sit in on the quarterly meetings of the mentioned DEQ advisory committee, and minutes of past meetings are available on request.

Just one of its eight members is from an environmental organization, and that one (Michigan United Conservation Club) has long accommodated the gas-oil industry. Its director recently left there to become director of MOGA.

Since joining the committee Harrison has not brought to its attention the frequent industry practice of filing for a mineral well in cases where his expert opinion is that the operator’s purpose is really to explore for oil.

Landowner Cooley’s court complaint only sought information. It did not seek to invalidate the permit. So in the future suppose some landowner notices an ugly new several-acre gash in the forest nearby and a big noisy drill rig going up. Suppose too the rig gives every indication it is exploring for gas or oil, but DEQ claims it is really a mineral well.

Is there a remedy? Yes.

One tack would be to just assert that a permit was issued and then sue to invalidate it. A Michigan statute allows such a suit in the court of claims. The gas-oil applicant would have to be named as a co-defendant. The statute has no requirement to exhaust administrative remedies before suing, and indeed how could a landowner try to exhaust given that all information was refused? The statute of limitations is a very short 21 days, but would not be a problem if DEQ refused the permit date.

Circumstantial evidence can prove any case. Expert testimony such as what Harrison refused for D4-11 would likely be necessary, because unlike in a FOIA case the plaintiff would have the burden of proof. The burden would be satisfied simply by showing the “purpose” of the well, at least in part, is more likely than not to explore for gas or oil.

DEQ could hardly defend in light its practice of not investigating the real purpose of a mineral well. The defense, if any, could come only from the gas-oil applicant. But in the face of the plaintiff’s evidence, it would have to provide facts including the name of the supposed mineral. It would lose if it merely answered “it is a mineral well because we say so.”

Litigation isn’t the only way. Instead the landowner could find someone knowledgeable in the academic world, and then publicize the well. Surely experts are there who would be willing to shame a practice which sacrifices landowners and the environment to profit-driven competitive gas-oil interests. Surely someone would be willing to speak up.

Barry County injection well EPA hearing is April 19

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A nearby, producing well also owned by Arbor Operating, Swanson 5-7, in Johnstown Township in Barry County. Photo by Jackie Schmitz.

A nearby, producing well also owned by Arbor Operating, Swanson 5-7, in Johnstown Township in Barry County. Photo by Jackie Schmitz.

Residents in Barry County are preparing for a public hearing held by the Environmental Protection Agency (EPA) for a proposed underground injection well in Johnstown Township. A Traverse City-based company, Arbor Operating, seeks to operate a class 2 well,  Swanson 4-7 SWD, which would take toxic wastes from oil and gas wells for permanent disposal. The permit application is requesting for a dry oil well on Manning Road to be converted to an injection well. The company now brings its wastes from three oil/gas wells to Calhoun County for disposal.

Diagram of an underground injection well for oil and gas industry wastes. EPA illustration, in the public domain.

Diagram of an underground injection well for oil and gas industry wastes. EPA illustration, in the public domain.

Anyone concerned about injection wells in Michigan are welcome to attend and provide comments to the EPA. The hearing is preceded by a public informational meeting. Both take place at the Hastings Public Library.

If you cannot attend, please send written comments.

Location: Hastings Public Library, 227 E. State Street, Hastings, MI (upstairs)

Date: Wednesday, April 19, 2017

Time:  Public Meeting 6:00 to 7:30 pm, followed by Public HEARING 7:30 to 9:00 pm

Come early to register to speak and be prepared to give a 3-minute comment.

April 21 Deadline for written comments: The written public comment period ends Friday, April 21 (midnight postmark). Send new comments to: Jeffrey Wawczak, U.S. EPA Region 5 (WU-16J), 77 W. Jackson Blvd, Chicago, IL 60604-3950. Comments can be submitted by email: wawczak.jeffrey@epa.gov

See the EPA Public Notice here.

Articles:

“A Proposed Injection Well for Barry County,” Michigan Citizens for Water Conservation,

“EPA plans to allow fracking-waste well in Johnstown Township; opens public hearing before approval,” Hastings Reminder, March 25, 2017

“State, EPA say proposed brine disposal well in Barry County is safe” MLive, April 13, 2017.

 

Michiganders: Getting a ban on fracking on the ballot needs YOU

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Need more Volunteers
By LuAnne Kozma

To get a ban on fracking and frack wastes on the November 2016 ballot, the Committee to Ban Fracking in Michigan needs more people to help collect signatures.

If you haven’t been involved, now is the time. It’s urgent. We’ve got a state to protect!

The deadline for collecting all the signatures is end of May 2016.

VOLUNTEER TODAY at WWW.LETSBANFRACKING.ORG

This is grassroots democracy

Over 150,000 people signed the petition last year. We were at as many festivals, farmers markets, concerts, and street corners as we could last spring, summer and fall. Nearly 800 people were involved. We were everywhere! We met enthusiastic supporters from every county in the state.

At our press conference in November 2015 with our 150,000 signatures.

At our press conference in November 2015 with our 150,000 signatures.We are a true grassroots campaign.

We are a true grassroots campaign. Last year, 100 volunteers collected over 92,000 signatures. Another 659 volunteers collected nearly 43,000 signatures. Paid circulators collected an additional 16,000.

Using our 150,000 signatures collected in 2015

The signatures collected last year have been verified using the Qualified Voter File. We plan to use all of the valid signatures in the submittal. While there is a Legislative effort to stop us through Senate Bill 776, (currently in the House Elections Committee), if passed, it will only force us into court.IMG_9157

But without enough signatures to submit, we can’t continue the fight. We’re not at the 252,523 valid signature mark yet.

During the long winter, many people dropped out, for various reasons: ill health, family obligations, moving out of state, etc. The bottom line is, we need NEW people to step up and participate.

Collecting signatures is easy

It’s not hard collecting signatures. Standing outside talking to people, asking them to sign, can take as little as one hour to collect 25 signatures. Outside a busy coffee shop in a northern Michigan city last Saturday, it was cold but sunny, and I was able to collect signatures from 30 people in just 1 and a half hours. It’s that easy. And we hear spring is on its way!

We need volunteers to collect more than just a few signatures, because it’s difficult for the team of organizers to take the time to train thousands of people who do only a handful–we’re volunteers too, and time is very limited to get this done.

So please. If you want to see this proposal on the ballot . . . Step up. Sign up. Collect signatures.

There’s no magic bullet, no magical group of people that will swoop in and do it for us.

When you sign up, we’ll teach you how to fill out the sheets property, give you official petitions and a clipboard, mentor you, and get you started.

We’ve come this far. Let’s get all the signatures we need. Don’t assume that others will do it for you.

And Spring events are upon us! Collect signatures at flower sales, craft fairs, sport events, races and runs, food fests, concerts, busy sidewalks, Arbor Day, Earth Day, Mothers Day . . . and more.

This campaign needs you.

Join us and sign up today at www.LetsBanFracking.org

If you cannot physically volunteer to collect signatures, please DONATE to the campaign to hire some individuals and teams to help out the volunteer effort.

Let’s Ban Fracking and protect Michigan from the many harms of fracking. See the campaign brochure here.

 

 

LuAnne Kozma is the campaign director of the Committee to Ban Fracking in Michigan, and also the president of the non-profit group, Ban Michigan Fracking. 

Michigan DEQ seeks total control of frack wastewater injection wells

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One of the many injection wells used to dispose of horizontal frack wastes in Michigan, the Slowinski injection well in Kalkaska County. Photo by LuAnne Kozma.

One of approximately 887 injection wells used to dispose of oil and gas wastes in Michigan, the Slowinski injection well in Kalkaska County. Photo by LuAnne Kozma.

By LuAnne Kozma and Ellis Boal

DEQ’s request to EPA to be in sole charge of the state’s class II injection wells for disposal of oil and gas industry wastes spells danger for Michigan water

We call on EPA to reject DEQ’s application and discontinue permitting of new injection wells in Michigan: Neither DEQ or EPA are credible or capable.

The Flint River depicted in a 1920 post card. The writer of the card says of Flint on the back, "This is a beautiful clean city." Postcard courtesy LuAnne Kozma.

The Flint River depicted in a 1920 post card. The writer of the card says of Flint on the back, “This is a beautiful clean city.” Postcard courtesy LuAnne Kozma.

While the State of Michigan was blowing off the entire community of Flint’s complaints about contaminated water last August,  it was also applying to the U.S. Environmental Protection Agency to be in complete control over the state’s toxic waste injection wells under the Safe Drinking Water Act.

If EPA approves the State’s application, it would be disastrous for Michiganders and our water resources.

Numerous investigations have publicized the responsibility of both the Michigan Department of Environmental Quality and the EPA’s Chicago-based Region 5 in the water crisis in Flint, after Flint’s state-appointed emergency manager Darnell Early switched the city’s water source to the Flint River in April 2014.

The Flint river has suffered from decades of industrial pollution. The water has high levels of chlorides (thought to be partly the result of road salt), making it highly corrosive, and which resulted in eating up the pipes and the leaching of lead into the public water supply. See www.flintwaterstudy.org and ACLU of Michigan video “Circle of Lies.”

On February 9  the state attorney general announced an investigation into possible criminal acts including manslaughter charges against a range of Michigan public officials.  Two in the cross-hairs will be Governor Rick Snyder and the former DEQ director Dan Wyant. Targeted also could be EPA officials in Chicago, including Region 5’s former director Susan Hedman.

Both Wyant and Hedman have resigned in disgrace over failure to enforce provisions of the federal Safe Drinking Water Act and for their roles in the #FlintWaterCrisis. They and other key players including Gov. Snyder will soon testify before Congress.

DEQ is asking for sole power over Michigan injection wells under the Safe Drinking Water Act

Diagram of an underground injection well for oil and gas industry wastes. EPA illustration, in the public domain.

Diagram of the two types of underground injection well for oil and gas industry wastes. EPA illustration, in the public domain.

Michigan DEQ drafted a plan in 2014 to acquire even more power over safe drinking water enforcement. In this case the subject was “class II” injection wells, wells drilled into the earth where gas and oil industry toxic liquid wastes are put down into geologic formations.  Not actually containers, these porous formations are the resting place for some of the nation’s worst toxic wastes. Old oil and gas wells are sometimes pressed into service as disposal wells. The wastes going underground include the chemical stew of the fracturing or acidizing fluids shot down into oil and gas wells combined with additional, salty and sometimes radioactive liquids and chemicals already below ground that all return to the surface during oil and gas extraction. They are massive in volume.

Currently both Michigan DEQ and EPA have to sign off on a new “class II” injection well permit. Now DEQ is seeking what is called “primacy.” This means, DEQ would have sole power and authority over all decision making and enforcing of federal laws regarding injection wells with little EPA oversight.

In November 2014 DEQ circulated a “briefing report” boasting that:

There are about 1286 class II wells in Michigan. … The State of Michigan is well equipped for Class II … primacy, understanding state specific geography, geology, cultural, climactic [sic], social, and economic issues. … The State of Michigan’s record of accomplishment for excellent environmental protection and regulation for Class II injection will continue under the delegated authority, and the DEQ will continue to provide good customer service to the regulated community and public.

Misspelling of “climatic” would be merely amusing if the consequences were not so serious. And the reference to “good customer service” angers a lot of Michigan residents who want governmental protection of water resources because we live here and drink the water, not because we are paying “customers.”

From EPA website 1/11/14.

From EPA website 1/11/14.

Of the 1286 class II wells, 887 of them are for disposal, and others are for enhanced oil recovery.

 

Structurally, there is no difference between a disposal well and a gas or oil well.

 

 

 

 

DEQ held “public meeting,” turned it into an on-the-spot (illegal) “public hearing” and then lied about it to EPA

DEQ then announced a “public meeting” would be held on December 9, 2014, to discuss the plan. Whether public comment would be allowed there was ambiguous, in the announcement.

When the “public meeting” started, DEQ announced to everyone’s surprise that it would hold a “public hearing” first. The two are very different, particularly in the legal requirement that a “public hearing” have advance public notice and that a formal record be made.

So this “public hearing” was secret. With no advance notice for a  hearing, fewer than a dozen people attended, and only two provided comments in person. Ban Michigan Fracking attended and made comments.  [See: bmfCommentOnDeqInjectionPrimacy.]

Later we filed a formal objection to DEQ assuming primacy in injection well regulation. We argued there had been no proper public hearing, Michigan and EPA have different definitions of “injection well,” and DEQ had advanced no reason it should have primacy other than that it wanted the power.

DEQ pitches the primacy plan to EPA while the two agencies cover up the Flint lead levels

But the water in Flint had turned brown and poisonous and for months people had been  documenting numerous health problems. Both EPA and DEQ were hiding EPA regulations manager Miguel Del Toral’s February memo to DEQ and his June report to EPA higher ups about the horrific lead levels he had documented. EPA gagged Toral from speaking with anyone and did nothing to alert the public. DEQ spokesperson Brad Wurfel called Del Toral a “rogue employee” and tried to explain:

“Let me start here – anyone who is concerned about lead in the drinking water in Flint can relax. … It does not look like there is any broad problem with the water supply freeing up lead as it goes to homes.”

Amid all of this dual-agency denial, and with no publicity DEQ submitted a draft primacy application for injection wells to EPA Region 5 last August.

The centerpiece was a “memorandum of agreement” set up for the signatures of Dan Wyant and Susan Hedman. It calls for DEQ and EPA to “maintain a high level of cooperation and coordination … to assure successful and effective administration.” Page 1 of the 383-page package has space for an endorsement letter by Governor Snyder.

A week later Flint citizens submitted 26,000 signatures on petitions asking the city to end its use of the Flint River for drinking water. In September Hurley Children’s Hospital in Flint published a study documenting the increased lead levels in children’s blood. DEQ’s contemptuous answer was: Repeated testing indicated the water tested within acceptable levels.

So DEQ’s record with safe drinking water law is far from “excellent,” and EPA’s complicity in the whole affair is now part of a federal investigation. Michigan DEQ has no business asking for primacy over injection wells and asserting the agency has a stellar record protecting Michigan people under the Safe Drinking Water Act.

One problem with injection wells is they leak

As ProPublica’s 2012 series of investigative reports on the nation’s underground injection wells revealed, there is the growing problem of leaking. The assumption that these toxic materials will remain safely entombed underground forever is mistaken. In “Injection Wells: The Poison Beneath Us,” former EPA technical expert Mario Salazar remarked that “In 10 to 100 years we are going to find out that most of our groundwater is polluted… A lot of people are going to get sick, and a lot of people may die.” Salazar worked with EPA’s underground injection well program in Washington for 25 years.

Cornell’s Dr. Anthony Ingraffea’s work in studying well casing failures shows that there is a big problem with all well structures–the cement and steel casing barriers between the drilled frack well or injection well and our aquifers. About 5% fail right after drilling, more fail later and eventually most will fail. A former industry insider Ingraffea says, “loss of well bore integrity [is] a well-understood and chronic problem.”

Jessica Ernst’s work, A Brief Review of Threats to Canada’s Groundwater from the Oil and Gas Industry’s Methane Migration and Hydraulic Fracturing, details hundreds of studies, reports, and other evidence of widespread well failure and water contamination in Canada and the U.S.

Compounding the issue of leaking casings is that with increased fracking activity creating more wells creating more and more fractures underground, and generating more wastes leading to even more injection wells poking more holes in the ground, there is more pressure on all the wells’ cement. Ingraffea commented to Ernst that industry is speeding up the cement degradation process “that used to take decades” and now takes only years. (See Slickwater: Fracking and One Insider’s Stand Against the World’s Most Powerful Industry, by Andrew Nikiforuk, p. 245)

A 2014 US Government Accountability Office report criticized the EPA for failing to adequately oversee injection wells. One criticism is that the EPA has not consistently inspected  state programs to ensure that state regulators comply with the Safe Drinking Water Act and EPA guidelines. And back in 1989, another GAO report, Drinking Water: Safeguards are Not Preventing Contamination from Injected Oil and Gas Wells, said that most of the contaminated aquifers could not be reclaimed because fixing the damage was ‘too costly’ or ‘technically infeasible.’ The report also noted “water contamination was not discovered, for the most part, until water supplies became too salty to drink or crops were ruined.”

Injection well hearings

Injection wells proposed for Michigan townships over the past few years have been met with intense public outcry. When “enough” people request a public hearing of the EPA, they hold one. While EPA is predisposed to permit an application if it meets all criteria, in some instances, when a community rises up and makes a show of force at a public hearing, and other political pressure comes to bear, communities can defeat an injection well in their area, but it’s tough going.

In Fork Township in Mecosta County, the EPA held a hearing in late January. About 200 people showed up at a local high school. Fifty people spoke, all in opposition to the well. This well is pending and the community continues organizing to oppose it.

In White Lake Township in Oakland County, residents rose up in opposition in late 2014 to a proposed injection well by Jordan Development. After residents inundated the township offices with calls, the company backed down prior to an EPA hearing being held and withdrew their application. Without a local notice of the pending EPA hearing, residents would never have known to complain at all.

In Summerfield Township in Monroe County, a similar story played out. Residents packed an EPA hearing in the local school auditorium in May 2015 and spoke out in opposition to a planned injection well by Trendwell Energy. The karst topography of the area played a role in providing a substantive reason for not putting an injection well there. After sustained opposition and public pressure, as well as pending legislation in Lansing to ban injection wells in karst topography, Trendwell pulled out of the project.

Regarding the DEQ having primacy and how it would have affected the outcome in Summerfield Township, township supervisor John Chandler says

“We need the EPA or another set of eyes for sure. The state rubber stamps these projects. The EPA hearing set the stage for us and put the oil company on notice. I believe it was the last trip to Lansing in December that really ‘drove it home’ when we testified to the House [on the bill.]”

Monroe County is now considering a county-wide ban on injection wells.

In Michigan DEQ’s hands, most injection wells would be approved

If Michigan were granted primacy by EPA, the DEQ would be able to hold hearings, but it would be up to Hal Fitch, assistant supervisor of wells to determine whether there was adequate public interest to hold such a hearing.

And because DEQ must follow the state law to “foster the development” of the oil and gas industry), approvals on injection wells would go industry’s way. And DEQ would be the final word. Public hearings would be a sham.

This part of the state law (MCL 324.61502) is being challenged by Michigan voters by ballot initiative. See the Committee to Ban Fracking in Michigan’s brochure at: www.letsbanfracking.org. The campaign continues with signature-gathering through June 1, 2016. (The Committee’s leadership includes the two of us).

Gas storage

Other evidence of DEQ’s lax well enforcement has now emerged, uncovered in a report last month by Michigan Environmental Council.

Gas storage wells in Michigan are of the same type as the one that spewed enormous quantities of greenhouse-gas methane in the affluent Porter Ranch neighborhood of Los Angeles for four months this winter.

Michigan has more active storage fields than any state, and even more are coming. Some aging wells and pipes haven’t been replaced since the 1940s. Odorant is not added to gas in the Michigan fields, making it hard to detect leaks. A disaster involving thousands of evacuations like that at Porter Ranch could happen here, according to an expert quoted by MEC.

MEC interviewed Hal Fitch about this.  Fitch is DEQ’s assistant supervisor of wells and directs the Office of Oil, Gas and Minerals.  He served for many years under the supervisor of wells, DEQ director Wyant.  The timing isn’t clear, but it appears the interview was just before or after his boss Dan Wyant quit.

Saying at first that gas storage standards are “strict” and “comprehensive,” Fitch then admitted inspections are infrequent, and DEQ standards really are not very good:

Those inspection reports contain “not a lot of detail, frankly,” he said. “With what’s going on in California, we’re looking at our process ourselves, to see if there’s some improvements we can make,” Fitch said. “[Storage wells] don’t get as many inspections as an oil well or a brine injection well. But we’re looking now if we should have more complete records. We’re getting good compliance as far as what’s required, but we’re evaluating whether that’s really sufficient.”

The federal safe drinking water act includes only liquid storage, not gas storage, under “class II” injection wells. Today DEQ has exclusive authority over gas storage, so the primacy application will not affect that. Even so, Fitch’s admission belies the DEQ claim it has an “excellent” underground environmental record.

DEQ misled EPA about “public hearing” and didn’t provide the public comments it did get

It was only last month that we learned DEQ had finally submitted the draft application to EPA Region 5 in August 2015. We obtained a copy and uploaded it to our site so anyone can review it.

We were surprised to see that DEQ made no mention of our organization’s comments and those of another citizen commenter. The DEQ asserted a “public hearing” had been held, without saying it had publicly billed it as a “public meeting.”

On January 29 we wrote Region 5 director Hedman complaining of the omission, and asserting our objection should be made part of the EPA record.

That was her last full day on the job.

The letter added two additional reasons Region 5 should deny DEQ’s application for primacy, given its mishandling of the Flint water crisis and its lax regulation of gas storage wells.

The injection well in Grand Traverse County where several deep frack well waste is taken for disposal, Weber 4-4. Photo by Ellis Boal. January 2012.

The injection well in Grand Traverse County where frack well waste from several wells is taken for disposal, Weber 4-4. Photo by Ellis Boal. January 2012.

So who should issue injection well permits?

The request exposed a glaring problem: If DEQ is denied primacy then EPA Region 5 continues in command. But Region 5’s handling of what happened in Flint is just as outrageous as DEQ’s.

Citing the widely-reported history, our letter to Hedman noted that Region 5 had memos in its hands about Flint’s water in February, April, and June of 2015. Despite danger to children, the Region 5 office sounded no alarms. Hedman claimed at first that EPA had no power to act, saying only the state could. But in fact under the federal law, the EPA had oversight responsibility and emergency powers to intervene. Soon top DEQ officials began resigning. A month later Hedman herself announced she would quit. Finally EPA issued an emergency order and is running the show but not from the Region 5 office in Chicago. It’s being handled in DC.

So who should be regulating Michigan’s “class II” injection wells for frack and oil/gas drilling wastes? We told Hedman: Injection permitting “should end throughout Michigan and all the states of Region 5.”

In addition to Michigan, Region 5 includes Minnesota, Wisconsin, Illinois, Indiana, and Ohio.

DEQ should withdraw the primacy application.  But if it persists with a formal application and Region 5 gives the expected preliminary green light, a public hearing will be announced — presumably a real one this time — for later this year.

Is the purpose for Michigan DEQ having “primacy” to increase the amount of waste being dumped in Michigan?

It seems so.  Injection well programs take place in 32 states, with the majority of wells around the Great Lakes and in places where gas and oil is produced like the Gulf Coast, California and Texas. Ohio is a state that has primacy for injection wells, with no EPA oversight. Injection wells there are multiplying. People in Ohio have been alarmed that they have been targeted as a regional center for toxic frack wastes from out of state as well as from the numerous frack wells within the state. According to a 2015 report by Earthworks that looked at the failures of oil and gas waste practices in four states–New York, Pennsylvania, Ohio and West Virginia–the two states with primacy (Ohio and WV) had the most injection wells, with about 200 and 60 respectively, while New York had only 6, and Pennsylvania 10.

In contrast, Michigan leads them all with approximately 887 disposal wells. With primacy, Michigan will become even more loaded up with class II injection wells and their deadly load.

A new injection disposal well  for Redding Township (Clare County) was applied for today.


See also:

The Committee to Ban Fracking in Michigan ballot campaign that would ban wastes from horizontal well bores using fracturing or acidizing: www.LetsBanFracking.org

America’s dirtiest secret: how billions of barrels of toxic oil and gas waste are falling through regulatory cracks, by Jefferson Dodge and Joel Dyer, Boulder Weekly, March 13, 2014.

Fracking wastewater is big business in Ohio, by Kathiann M. Kowalski, Midwest Energy News, July 18, 2014.

Injection wells: the poison beneath us, by Abrahm Lustgarten, ProPublica, June 12, 2012. (And see the entire series of ProPublica investigations on injection wells.)

No time to waste: effective management of oil and gas radioactive waste, (no time to waste-2), Western Organization of Resource Councils, 2015.

Wasting away: four states’ failure to manage gas and oil field waste from the Marcellus and Utica Shale,  by Nadia Steinzor and Bruce Baizel, Earthworks, April 2015.

*NOTE that some of these reports propose regulatory solutions. Ban Michigan Fracking’s position is instead on a BAN: that these wastes must end and the processes that produce them must cease. Fracking and injection wells can’t really be “made better” because the fixes do not prevent harm.

The Flint water connection to fracking

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The Karegnondi pipeline running from Flint to Lake Huron might be a conduit to forcing more residents off of groundwater wells that will be affected by fracking, and onto the Karegnondi water system. Photo from Karegnondi.org

by LuAnne Kozma

People have been contacting us about the possibility that one reason for Flint’s plans for a new pipeline for water from Lake Huron through the recently formed Karegnondi Water Authority, is to provide water to the frack industry. This first came up in a blogpost “Could the Flint water crisis have its origins in a desire to open up new areas of Michigan to fracking?” and it’s been repeated in other reporting, such as Motor City Muckraker and Eclectablog.

The more likely connection: free groundwater for the frackers, Karegnondi water at a price for everyone else

UnknownA connection is there, but unless new evidence turns up, it’s not that the new Karegnondi pipeline necessarily would provide water directly to the frack industry. Instead, the likely scenario is that as the gas and oil industry drills and/or fracks in the Genesee, Lapeer, Sanilac, and St. Clair county areas along the pipeline’s routes, residential water wells will go bad and become contaminated, forcing residents to tie in (buy in) to the new Karegnondi water system, making them rate-paying water customers.

Monetizing water for people who currently get their water from groundwater wells is perhaps part of the business plan behind Karegnondi. Michigan has more private groundwater drinking wells providing water to residents and municipalities than any other state. The more the frackers can have access to that water, pushing more and more people off the groundwater supply and onto privatized or monetized sources, the better for the oil and gas industry, and the much worse for the public.

Download the Karegnondi pipeline map pdf.

The state’s role in oil and gas development 

Most people think the DEQ “does its job” by protecting human health and the environment, and resources like water, above all else. Not so with oil and gas. The Oil, Gas and Minerals Division of the DEQ is in charge of oil and gas development in the state, and issues permits for frack wells. Michigan DEQ is required by state law to

“foster the development of the [gas and oil] industry along the most favorable conditions, with a view to the ultimate recovery of the maximum production of these natural products.” (MCL 324.61502)

“Drill, baby, drill” is written right into the law. This must change. It’s been there since 1939. The Committee to Ban Fracking in Michigan has written a ballot initiative to change this statute, ban fracking and frack wastes, and ban acidizing in horizontal well bores.

The state has a deeper, darker “role”: It also makes money from the production of oil and gas. In effect, the state is a business partner with the oil and gas industry, even though, it’s supposed to be regulating it. In this case, “regulating” means giving them every opportunity to extract fossil fuels and make a profit.

It’s more insidious than that. Much like the lead industry waged a campaign to outfit the nation’s infrastructure with their deadly lead pipes (see: The Lead Industry and Lead Water Pipes: A “Modest Campaign”) we see these same devices being used today by the oil and gas industry to install their deadly infrastructure of natural gas plants, frack wells, compressor stations, toxic injection wells, and pipelines.

And the DEQ is right there with industry, promoting it, and mouthing the same propaganda. Brad Wurfel, the disgraced former DEQ spokesperson who recently resigned for his despicable role in the #FlintWaterCrisis (and who said “anyone who is concerned about lead in the drinking water in Flint can relax”) has repeated frack industry talking points like “new fracking technology is a potential game changer for this country.” He also said: “The state’s regulatory program is regarded nationally as one of the toughest — a safe, effective way to allow domestic energy production while protecting the land, air and water.” An interview by the Rockford Squire with DEQ’s Wurfel reads like an ANGA (American Natural Gas Association) commercial, while putting down residents sounding the alarm about the harms of fracking.

Fracking and drilling planned for Genesee, Lapeer, Sanilac, and St. Clair Counties

There are plans for fracking and other drilling activity in Genesee, Lapeer, Sanilac, and St. Clair counties. There are already four “high volume, hydraulically fractured,” frack wells (those using over 100,000 gallons of water per well) in Sanilac County: the Schultz, Walker, State Wheatland & Reinelt, and Van Damme wells, all targeting the A-1 Carbonate formation.  (See current map of DEQ wells).

The State auctioned off state-owned mineral rights to acres throughout the area, with 200 acres auctioned in Genesee county near Holloway Regional Park.  In 2013 land men from Western Land Services combed the area meeting with landowners, buying their mineral rights. Local residents organized in opposition, with Oregon and Richfield Townships in Lapeer County passing resolutions against fracking. And large gas storage fields (like the Porter Ranch, California storage well that is leaking massive amounts of methane) are located in St. Clair County.

The frackers sometimes do purchase municipal water

It’s possible that municipal water from Karegnondi could be used in the future for fracking. The frackers have certainly purchased water from municipalities in the past when groundwater supplies became scare or insufficient. With the Westerman frack well in Kalkaska County the frackers ran out of groundwater, bought public water from the nearby municipality, and when that wasn’t enough for the frack job, resorted to drilling 8 more water wells on site.

The city of Saline, in Washtenaw County, was selling municipal water for oil and gas drilling in 2012 until residents rose up and stopped it, and the city imposed a moratorium on further water sales. As Saline resident and business owner Mitch Rohde, opposing the use of municipal water for drilling, said at the time,

“I can say that my company is here to stay, and isn’t here to suck non-renewal resources out of the ground, profit, and in a locust-like manner move on, leaving a path of industrialization, potential contaminant, property devaluation and other issues while lining up the next small town to feed on.”

The frack industry uses ground water for free. A lot of it.

Water well drilled on the site of the Mancelona 1-28 HD1 horizontal frack well, on state forest land. The frackers use public groundwater for free.

Water well drilled on the site of the Mancelona 1-28 HD1 horizontal frack well, on state forest land. The frackers use public groundwater for free. Photo by LuAnne Kozma.

Generally, though, the frack industry uses ground water from temporary water wells they drill on the site of the well pad (see above photo). If the frack well is on state land, that means the frackers use this publicly-owned resource for free, and use as much as they want. The hokey, much criticized “water withdrawal assessment tool” (WWAT) is used by the Michigan Department of Environmental Quality as a guise to make it appear they’ve considered the quantity of water being removed from the ground. In fact, it does no such thing, records no cumulative records of how much water is removed from the aquifers below, and studies no impacts.

And when a frack well applicant fails the WWAT, the DEQ staff simply visit the site, and then rubber stamp the approval anyway. One well, which failed the WWAT, used over 21 million gallons of water. (See: Michigan’s 21 Million Gallon Frack Job and Michigan Gas Wells Surpassing All Water Records,  Governor-approved Frack Panel Unconcerned).

The frack industry, if it does all the drilling it wants to, will thirst after Michigan water. One estimate from 2013 was if Encana (now sold to Marathon) drilled the 500 wells they projected, the company would use and destroy 4 billion gallons of groundwater, about what Traverse City uses in two years.

The DEQ keeps this list of the water amounts used by the industry’s recent “high volume hydraulically fractured” wells.

The millions of gallons of fresh water used for fracking are no longer “water” after it is combined with millions of gallons of chemicals, many of them neurotoxins and cancer-causing. These millions of gallons are permanently taken from the water cycle. To frack, the toxic cocktail is injected underground using extreme pressure to break up the rock formation (or in the case of acidizing, dissolve the rock). What comes back out of the well is even worse, and usually radioactive. These liquid wastes (the industry and DEQ like to call this toxic waste “flowback” and “produced water”) are then put into injection wells and again re-injected deep into the earth’s formations, to be buried supposedly forever. But well casings fail, as researchers and industry itself have studied, allowing these toxins to enter and poison aquifers. (See ProPublica’s reporting “Injection Wells: The Poison Beneath Us.”)

Governor Rick Snyder says “in Michigan we do fracking right”

Governor Snyder said in a televised debate, “in Michigan we do fracking right” and “we work with industry….” And now you know why the DEQ works with industry to contaminate Michigan with toxic chemicals, toxified water, and frack wastes from other states. With the world now watching Michigan’s governor, his emergency manager-based autocracy, his words and actions in the #FlintWaterCrisis, the Detroit Public School takeover, and the frack industry invasion, Michiganders and others are now seeing through this flim flam.

For more information about the harms of fracking and the ballot initiative to ban fracking and frack wastes statewide, see the Committee to Ban Fracking in Michigan’s brochure. The Committee is collecting signatures before June 1 to get the ban on fracking and frack wastes on the ballot this November.