By Ellis Boal
After public hearings last summer amid the public uproar about fracking, in March 2015 the Michigan Department of Environmental Quality’s Office of Oil, Gas and Minerals published new administrative rules for oil, gas, and fracking. DEQ provided a link and said the new rules:
contain additional requirements when completing a well using high volume hydraulic fracturing [HVHF] by modifying Rule 201 and adding Part 14 High Volume Hydraulic Fracturing. The revised administrative rules also contained other minor updates related to definitions, injection, and spacing issues.
Since horizontal fracking came to Michigan in 2010, some environmental groups have put all effort into improving sloppy practices, and getting tighter DEQ fracking regulation.
The new rules show the futility of those efforts. If anything, they facilitate more fracking than the old rules. Protection of public health, the environment, forests, water resources, air, climate, and our communities is still at stake.
The technical details are below.
“Construction of part”
The overall show-stopper is the legislature’s statutory finding at MCL 324.61502. This law will remain in place unless the ballot initiative campaign of the Committee to Ban Fracking in Michigan succeeds in 2016. Innocuously titled “construction of part” – meaning “how the DEQ is to construe part 615 [the state oil-gas law]” – the finding ends with these words:
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.
Binding on judges, juries, and DEQ regulators, this special-interest provision has been on the books since 1939. Most government agencies treat their regulated industries neutrally. Not so with DEQ and oil-gas. “Fostering” the industry means fostering oil-gas profits. “Maximizing” oil-gas production means maximizing Michigan’s contribution to fossil fuel-driven global warming.
Thus “construction of part” declares a vision statement or ideology, that animates both the old DEQ rules and the new DEQ rules.
The citizen-led ballot initiative will ban horizontal fracking and acidizing in the state, and render the HVHF rules obsolete.
Just as importantly, it will eliminate the oil-gas industry’s special-interest protection. Instead of fostering the industry and maximizing production, the new “construction of part” will say:
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 to protect water resources, land, air, climate, human health, and the natural environment.
Terminology and a caveat
Terminology: “Part 615” noted above refers to the oil-gas “part” of Michigan’s overall environmental law known as “Natural Resources and Environmental Protection act” (NREPA), found at MCL 324.101 et seq. Part 327, noted below, is also in NREPA.
The DEQ rules are also divided into “parts,” numbered part 1 through part 14. They are in a different number sequence than the parts of NREPA. Confusingly, the two sets of “parts” have no relation to each other.
The caveat: Many of the new rules refer to “high volume hydraulic fracturing” (HVHF), defined as fracking which uses a total volume of more than 100,000 gallons of primary carrier fluid. HVHF usually occurs in wellbores which are horizontal, but not always. The ballot initiative of the Committee to Ban Fracking in Michigan by contrast seeks to ban fracking and acidizing in horizontal wellbores, without tying it to a specific volume of primary carrier fluid.
Details on the new rules
- Greenhouse gas (GHG) emissions: On April 27 the Detroit News editorialized against signing the ballot initiative, asserting that the new rules “control methane emissions.” They do not. New rule 1404(1)(c) provides only for testing for methane (and six other chemicals) in water wells which are near HVHF wells. No tests are done for fugitive methane (methane which escapes into the air). Methane is the primary constituent of natural gas, and a potent GHG. Other new rules say nothing and do nothing about Michigan’s contribution to global warming. Comments by Ban Michigan Fracking at last summer’s hearings made particular note that the prohibition of “waste” in MCL 324.61501(q)(ii)(B) does not include air or climate as protected values, and that DEQ’s historic permitting practice has been to monitor only non-GHG emissions.
- Cumulative impacts and habitat fragmentation: The new rules say nothing about proliferation and cumulative impacts of wells. The DNR leases oil-gas rights and DEQ permits oil-gas wells separately with no coordination between them. Wells are often located near rivers and streams. In basins with a high density of operations, numerous wellpads in the same watershed compound cumulative impacts of above-ground wellheads, compressors, pipelines, access roads, and associated industry.
- Wastewater, radioactivity: The new rules have no requirement for geochemical analysis of flowback and produced water, particularly from underground radioactive shale rock typically associated with shale gas.
- Compulsory pooling of surface owners can now be done after drilling and fracking is done: Rule 301(1)(d) now allows a permit to be issued and the well drilled on a unit with fractures extending under unleased land — land the fracker does not have the rights to — prior to a hearing being held to see if a dominant leaseholder can force other owners into a pool. The theory under MCL 324.61513(4) is that the leaseholder should not be deprived of a fair share of oil or gas in the pool. Pooling orders are typically justified by the “construction of part” language that requires the state to foster “maximum production” (language which will be eliminated if the ballot initiative succeeds). See this example of a case of compulsory pooling where DEQ relied on “construction of part” to force owners into a drilling unit. The assumption of compulsory pooling is that everyone wants to produce oil or gas from his/her land to the max. If ever accurate historically, the assumption is not uniformly true today. Cosmetically, the new rules also change the term “compulsory pooling” to “statutory pooling,” hiding the fact that landowners are forced into drilling units against their will.
- Seismic impacts: The new rules have a single passing reference to seismic activity. It is in rule 1202(3)(a), the procedure for petitioning to establish secondary recovery operations. In April, the US Geological Survey linked oil-gas activities to induced earthquakes. The new rules require no seismic precautions.
- Confidentiality: Rule 416(3) requires operators on request of the DEQ to give it fracking, acidizing, and other well records. But if an operator asks DEQ to hold well data and samples confidential (excepting data on spills, leaks, and chemicals used), DEQ will do so until 90 days after drilling is completed. Confidentiality advances no environmental principle or policy.
- Spacing and blowouts: When a fracker seeks a special spacing order, rule 303(2) no longer requires that DEQ make sure that the distance between wells prevents interference. Interference can result in a blowout at an adjacent well. DEQ is now content to grant a permit to a well where a blowout could happen.
- Conformance bonds: Bonds for single wells range between $10k and $30k depending on depth according to rule 212, but the state auditor general found in 2013 the average cost to plug one is $50k+.
- Hearings on well permits: Rule 201(4) provides for no notice to nearby landowners of fracker applications for well permits, and no hearings or appeals if a permit is granted.
- Injection wells: There is no change in rule 102(x), the definition of “injection well.” The rule’s definition includes disposal wells and wells used to inject water “for the purpose of increasing the ultimate recovery of hydrocarbons from a reservoir.” A reservoir is any gas-bearing formation, even if it is solid rock. Injecting to increase recovery is just what frack wells do in the Utica-Collingwood, A-1 carbonate, and other gas-bearing formations. By nature, frack wells are permanent disposal wells of half their own injectate. In 2014 our court of appeals interpreted the rule definition to refer to any well used to increase recovery of hydrocarbons from a reservoir which was already producing before water was injected. Every well in the Utica-Collingwood and A-1 carbonate, and practically every other frack well in the state today, fits that interpretation. Yet DEQ refuses to treat them under the rules for injection wells. Those rules include rule 804 which uses a formula to limit the amount of injection pressure.
- HVHF: The new rules have an amended part 2 and a new part 14 to cover high volume hydraulic fracturing (HVHF). HVHF is defined in rule 1401(h) as fracking which uses a total volume of more than 100,000 gallons of primary carrier fluid.
- Trade secrets and HVHF: Under rule 201(2)(c), anticipated chemicals in the injectate, and their “chemical abstracts service” (CAS) numbers, must be identified in advance. Under rule 1406(1)(c), the chemicals and CAS numbers actually used have to be listed with FracFocus 30 days after completion. (FracFocus does not operate under a public mandate or verify information submitted to it.) But both requirements have an exception if the fracker simply makes a claim for protection under Michigan’s trade secrets statute, MCL 445.1901 et seq. The trade secrets law does not protect the public from frackers. It protects frackers from each other. Neither the trade secrets law nor the new rules provide a mechanism for a citizen to challenge a fracker’s claim of secrecy.
Baseline water testing and HVHF: Rule 1404 requires the permit holder to do pre-drilling sampling of water from potable wells near the surface hole, test the samples at a lab for seven chemicals, and give a copy of the lab results to the landowner. No testing for the hundreds of other chemicals identified in frack operations is required. And chemicals in secret mixtures can’t be tested for at all. Sampling in the vicinity of the horizontal laterals, sampling of water levels and flows, sampling of surface waters, splitting samples so the landowner can have half, and doing post-drilling sampling are not required. Nor is sampling required for water wells near gas wells which are not HVHF.
- Water Withdrawal Assessment Tool and HVHF: Rule 1402 has provisions for protection of water withdrawn for fracking. The rule requires screening by Michigan’s water withdrawal assessment tool (WWAT), adopted in 2008 by the legislature in MCL 324.32701 et seq (or NREPA part 327). If a fracker’s withdrawal request fails WWAT screening, it may request a site-specific review. DEQ would then take a closer look and decide whether to approve withdrawal. In the past, DEQ has routinely approved permits even when the WWAT test “fails.” WWAT screening has problems. It estimates surface water flows from just 147 gauged stream segments around the state. The gauges tend to be on medium- and large-sized streams, not sensitive headwaters. WWAT has not been updated since 2008. It was developed to deal with long-term withdrawals like agricultural irrigation, not the short-term intensive withdrawals required for fracking. WWAT cannot assess the potential impacts on habitat, wildlife, and nearby waters receiving site runoff. It does not account for water withdrawal impacts to wetlands and lakes. It cannot measure potential changes in surface runoff patterns due to the clearing of land and road construction. It overestimates stream flow (and so underestimates adverse effects). Academics have criticized it.
- Use of WWAT and HVHF: Even were WWAT a valid screening device, DEQ misuses it. Two big frack wells were permitted in 2011, State Excelsior 1-13 HD1 and State Excelsior 1-25 HD1. Both wells failed WWAT screening according to the linked DEQ paperwork for the wells. That triggered a site-specific review by DNR water specialist David Deyoung. Deyoung gave the go-ahead and permits were granted. But according to pages 84-87 and 108-113 respectively of the paperwork, he gave no reasoning, did not consider the stream or river flow data of affected stream reaches, and did not even state he visited the sites.
To protect Michigan from harm, we must use the Precautionary Principle and do no harm. Rules by which to frack, only lead us down the road to more and increased fracking across the state.
By Ellis Boal
It would allow public agencies to withhold “critical energy infrastructure” information — defined as “engineering … or detailed design information” which “relates details about the production, generation, transportation, transmission, or distribution of fuel or energy” of “existing and proposed” infrastructure “relating to crude oil, petroleum, electricity, or natural gas.”
The definition is limited to information that is “more than the general location,” and that “could be useful to a person in planning an attack” on systems and assets, the incapacity of which “would negatively affect public security, economic security, health, safety….”
Both proponents and opponents have focused on oil and gas pipelines and high-powered electrical lines as the critical energy infrastructure which the bill targets. But in ordinary discourse the term also includes oil and gas production.
In the future as wind and solar begin to take hold in the state, central production and transmission facilities related to them would seem to be included too.
(The bill also has provisions related to cybersecurity generally, not limited to oil, gas and electricity. They have not sparked widespread controversy.)
If the bill were amended to exclude production, the primary agency affected by it would be the Michigan Public Service Commission (MPSC) which regulates transmission of oil, petroleum, electricity, and gas.
What follows is an object lesson, where secrecy of gas pipelines proved disastrous for Michigan forests and wildlife.
To build a gas line, a company has to give MPSC a plat showing the line’s dimensions, character, compression stations, control valves, and connections. Similar details are required for oil, petroleum, or electric lines.
In January 2013 deep-shale fracker Encana Oil & Gas (USA) applied for and MPSC permitted gathering lines for two horizontal wells. The lines were to connect the wells to a transmission line crossing southern Crawford and Kalkaska Counties.
This is Kirtland’s warbler territory. Kirtlands are federally endangered birds. If you kill one you pay a fine or go to jail or both.
Encana asked MPSC to process the applications “ex parte” — which means secretly. MPSC obliged. Neighbors near the lines had no chance to object. Twenty days later MPSC granted the applications in boilerplate decisions. Only then did the existence of the proposed lines became public.
Neighbors John Buggs, Dan Bonamie, and Gary Cooley live in inholdings of the state forest which the Crawford County line traverses. The line goes along King Road, what was once a stately woodland two-track. They and their neighbors walk, hunt, and bird throughout the area.
Encana had submitted environmental impact assessments (EIAs) to MPSC. But the EIAs were slopwork, supposedly authored by Encana’s surveyor but unsigned. His only enviro credential is a certificate to teach high school biology. The EIAs made no mention of the nearby Kirtland nesting sites, and did not even claim to investigate environmental impacts in the forest alongside the pipeline easements.
MPSC didn’t read the EIAs, saying that wasn’t its job. Buggs and Bonamie tried to intervene and ask for reconsideration, but the agency refused, holding they lacked standing.
In the court
The two appealed to the court of appeals, where Encana argued again they lacked standing.
Meanwhile the company spent $2 million and built the lines, flattening two Kirtland’s warblers in the process, according to witness Cooley’s affidavits. Cooley reported the find to two Encana contractor employees who refused to even look at the dead birds or report the incident to DNR as required.
Cooley also took before-and-after pictures of the one line which goes by his place. DNR had allowed easement widths of 35 feet, but the company used 53 feet including an 8-foot strip of roadside trees along King Road outside the easement boundary.
The court was shocked by Encana’s standing argument. It told the company that dismissing the appeal “may result in a miscarriage of justice.” It added environmental review is the job of every agency, under longstanding Michigan precedent. It reversed the MPSC permits as “unlawful,” and remanded to the agency.
Meanwhile Encana had sold the lines to DTE Michigan and the wells to Marathon Oil.
Back at MPSC
DTE then told MPSC it should now read the EIAs and re-affirm the permits summarily with no hearing.
Getting some backbone for a change, MPSC refused. The EIAs were “mere guesswork,” it ruled. Then it gave DTE till August to try to show the “efforts [it] made and resources [it] used” to produce the EIAs.
MPSC did not ask DTE to submit new EIAs by someone who does have credentials. Any new EIA — after Encana already gouged the forest — would be untimely by 2½ years and objectionable.
Recognizing the “interest” the case has generated, MPSC issued a press release and will allow public comment for 30 days after DTE’s submission in August.
Pleadings and decisions in the case are at this link. The technical details provided by Encana when it applied for the lines is in items 1 and 2 of the link. The details include pipe specs and diameters, wall thickness, minimum yield, joint information, coating information, fitting information, maximum and normal pressures, max/min/expected operating temperatures, and other data.
In particular the details showed the line diameters would be 6.625 inches (commonly referred to as 6-inch).
This is the kind of detail which MPSC would be privileged to withhold under HB 4540. Are such details important to Buggs’s and Bonamie’s case?
This is where it gets interesting.
After the court decision, DTE did not remove the lines. It didn’t even stop operating them. Today it is making money off them. But the law provides for fines and a year of prison for corporate officers who have or operate a line without a permit. Here we have two lines and no permits.
Buggs and Bonamie began to question DNR about the 35-foot easements over which the lines run. The width of the easement determines how wide a forest swath can be excavated and cleared for a line. DNR procedure, in effect since 2005, recommends widths of 20 feet or 30 feet.
So why did DNR allow 35 feet for these lines?
And why did it allow taking of the 8-foot strip in violation of its 1994 policy that roadside trees make a “significant contribution to the natural beauty of the surrounding area”?
A DNR employee questions
DNR land use forester Jerry Grieve handled Encana’s application for one of the two lines. He questioned superiors about the width in the fall of 2012. Encana had requested 50 feet for that line. Grieve wrote:
Note: This requested easement is for 50′ not the normal 20′. This is because of the kind of pipeline being put down…. [D]iscussions about the width … are still on going in the Department. A final determination of width will be made by the time the easement is issued in Lansing.
FOIA information shows that in the case of this line, DNR did comply with the normal procedure — in writing — and allowed just 20 feet. But when Encana started excavating and clearing it went out 35 feet. DNR’s reaction: It just winked. In the case of the other line, the written permission stated 35 feet.
No FOIA notes of the DNR decisions show why it deviated from “normal” 20 feet.
But there are clues suggesting possible explanations. One is that the company overstated the line diameters. It told MPSC they would be 6 inches and DNR they would be 8 inches. Companies are supposed to be straight with public authorities. But neither MPSC or DNR have demanded an explanation of the contradiction. DNR fell for it and may have used the exaggerated diameters as an excuse for too-wide easements.
The second clue may be that something in the technical specs — perhaps the steel construction material or the expected pressure — motivated the deviation.
If this information caused DNR to violate its longstanding “normal” procedure, then the public is entitled to know. The width issue goes to the core of the DNR’s mission. Its job is to protect state forests from fragmentation, not violate rules secretly just because a powerful company wants it to.
But it is exactly the kind of data which MPSC and DNR could withhold under HB 4540, by simply declaring terrorists might use it.
In May, Buggs and Bonamie sued DNR in the court of claims to vacate the easements and restore the slashed forest. DNR has not yet responded.
Regardless how the new suit turns out, HB 4540 will allow MPSC and DNR to continue hiding information, and eating out of the hands of the frackers.
Adrian Today reported on May 10 that a search of campaign finance records shows that all the bill’s 12 sponsors received financial support from the energy industry in 2014.
The litigations are supported by Ban Michigan Fracking.
The Committee to Ban Fracking in Michigan launches its ballot initiative petition drive–all on paper, on foot, and in person–this May 22, 2015, as a new poll the Committee released, by Public Policy Polling, shows a strong majority supporting the ban on fracking and frack wastes.
Below is the complete press release
Poll results can be found here.
FOR IMMEDIATE RELEASE
May 19, 2015
CONTACT: Committee to Ban Fracking in Michigan, www.LetsBanFracking.org
LuAnne Kozma, Campaign Director, 231-944-8750 firstname.lastname@example.org
Jim Williams, Public Policy Polling, 919-985-5380 Jim.Williams@PublicPolicyPolling.com
New poll of Michigan voters shows a strong majority supports a statewide ban on fracking and frack wastes as ballot initiative signature-gathering campaign begins May 22
CHARLEVOIX, MICH. – In results from a new poll conducted by Public Policy Polling (PPP) released today by the Committee to Ban Fracking in Michigan, Michigan voters indicate strong support and would vote yes for the Committee’s statewide ballot proposal ban on fracking and frack wastes.
The Committee to Ban Fracking in Michigan, a citizen-led ballot initiative group seeking to ban horizontal hydraulic fracturing and frack wastes, kicks off its campaign this week. Volunteer circulators begin collecting signatures starting Friday, May 22, 2015 for a six-month period to qualify for the 2016 ballot.
The telephone poll reached 855 Michigan voters between May 15 and 18, 2015.
“As we begin collecting signatures this weekend, we know that our fellow Michigan residents are with us on a statewide ban. They don’t want fracking and frack wastes to destroy our beautiful state or harm our health as the frack industry has in other states. We are excited to work together to make a change in Michigan law and bring this proposal to the voters. Everyone who supports the ban should get involved right away and donate to, volunteer for and endorse the campaign,” said LuAnne Kozma, the Committee’s campaign director.
According to the poll, a strong majority of fifty-five percent (55%) of respondents said if the election were today, they would support the Committee’s ballot proposal to ban fracking and frack wastes statewide, change the current law that requires the State to foster the gas and oil industry and put in its place a requirement that human health and the environment be protected during oil and gas development, and give Michigan residents the right to sue if the fracking industry violates the ban. Only 32% oppose the measure, and 12% are not sure.
Fifty-nine percent (59%) of the respondents said they support changing the Michigan Department of Environmental Quality’s directive that currently requires the State to foster the oil and gas industry and maximize oil and gas production, to focus more on protecting Michigan’s environment and public health during oil and gas development, which is a key part of the Committee’s ballot proposal language. Only 28% oppose changing it.
An overwhelming majority, sixty-four percent (64%) of those polled, support a ban on frack wastes being disposed of in Michigan, including frack wastes produced in other states, after hearing that currently frack wastes, including radioactive drill cuttings, muds and sludges, and millions of gallons of fluids containing toxic chemicals, are disposed of in Michigan landfills, injection wells and at Michigan gas drilling sites.
After learning that Vermont banned fracking and New York banned fracking based on concerns about health impacts, and that other states that are heavily fracked such as Colorado and Pennsylvania have hundreds of wells in a single county with documented health impacts, fifty-nine (59%) responded that fracking and frack wastes should be banned in Michigan before the industry creates health problems for Michigan residents.
“These results clearly show that Michigan voters have major concerns about fracking and frack waste harming Michigan’s environment and damaging their health,” said Jim Williams, a polling analyst at Public Policy Polling.
“Only a ban can protect us from the significant harms of fracking,” said Peggy Case, president of Michigan Citizens for Water Conservation and on the Committee to Ban Fracking in Michigan steering committee. “The poll shows that a clear majority, sixty-nine percent (69%), of Michigan residents, dependent as we are on groundwater wells and the Great Lakes for our drinking water, has serious concerns about the risk of water contamination from the frack industry. It is urgent that we move to alternative forms of energy to protect future generations.”
The margin of error is +/- 3.4%.
The Committee to Ban Fracking in Michigan is looking for more volunteers to circulate petitions, donors, and endorsers for the campaign which begins May 22, 2015 for a six-month period. The following Kick Off events are planned to start off the Memorial Day weekend. See http://LetsBanFracking.org
Kick Off Events:
For full list, see www.letsbanfracking.org
Saturday, May 23, 9:00 a.m.
Scottish Highland festival, downtown Alma
Friday, May 22, 6:00 to 8:00 p.m.
Outside Espresso Royale
214 S. Main St.
Saturday, May 23, 9:00 a.m. to noon
Ann Arbor Farmers Market
315 Detroit St.
Saturday, May 23, 1:00 p.m.
March Against Monsanto
Liberty Plaza, Corner of Liberty and Division
Saturday, May 23, 9:00 a.m. to noon
Boyne City Farmers Market, Veterans Park, Lake Street
Saturday, May 23, 10:00 a.m. to noon
Chelsea Farmers Market
Downtown on 222 S. Main St, Chelsea
Saturday, May 23, 10:00 a.m. to noon
Meet between Sheds 2 and 3
Friday, May 22, 5:00 to 8:00 p.m.
Outside Harmony Brew
1551 Lake Dr SE, Grand Rapids, MI 49506
Saturday, May 23, @ 2:00 p.m.
March Against Monsanto, Ah Nab Awen Park
Training for Circulators @ 1:30 and 3:00
Saturday, May 23, 8:00 to 10:00 a.m.
Muskegon Farmers Market
242 W Western Ave, Muskegon, MI 49440
OTSEGO (ALLEGAN COUNTY)
Saturday, May 23, 10:00 a.m. to noon
City of Otsego Farmers Market
112 Kalamazoo St/M-89, Otsego, MI 49078
Friday, May 22, 10:00 am to 1:00 pm
Outside Roast and Toast Café
309 E Lake St Petoskey, MI 49770
Friday, May 22, 6:00 to 10:00 p.m.
Intersection of 4th and Waters Street, Rochester
Saturday, May 23, 11:00 a.m. to 5:00 p.m.
Heritage Fest, Rochester Municipal Park
400 Sixth Street, Rochester
Saturday, May 23, 10:00 a.m. to noon
South Haven Farm Market
Behind the South Haven Library, in the park near pavilion
Friday, May 22, 6:00 to 8:00 p.m.
Horizon Books, downstairs
243 E Front St, Traverse City, MI 49684
Saturday, May 23, 9:00 a.m. to noon
Ypsilanti Depot Town Farmers Market
100 Rice St., Ypsilanti
The University of Michigan Graham Sustainability Institute issued its “Draft Final Report” of “Hydraulic Fracturing in Michigan” on February 20. The report is downloadable at http://graham.umich.edu/knowledge/ia/hydraulic-fracturing .
The Graham Institute allows only 30 days — until March 20 — for the public to read and comment on the 277-page report.
Unlike the Institute’s technical reports issued in September 2013, this draft does tip its hat to the ballot initiative of the Committee to Ban Fracking in Michigan, with footnotes to the website, http://letsbanfracking.org . And a page of the “Public Participation” chapter has a table purporting to show a ban’s strengths and weaknesses.
Lamentably, it gets them all wrong.
For example, a weakness of a ban is said to be that it “does not involve the public in the decision making process” — a ludicrous proposition given that a ban by ballot initiative–which the report acknowledges is in the works–would be voted on by millions of people after collection of signatures of hundreds of thousands.
Another weakness of a ban (again, the general concept of a ban) is said to be that the state may be subject to legal action as a result of taking of property. The table does not notice that a ban on horizontal fracking is not a total taking. The initiative, for example, will not affect the vertical fracking which Michigan has conducted for decades, a fact which will weaken or decimate any legal taking claim. Developers have lost the last two taking claims advanced to Michigan appellate courts, following the loss of nearly every taking claim by oil-gas developers across the US nationally in recent years.
The Graham table has no mention of the legacy costs to Michigan taxpayers for the ongoing costs of environmental contamination. Which will be considerable if years and years of Michigan frack wastes and frack wastes from other states accumulate here in landfills, injection wells, wastewater treatment plants and other facilities across the state.
Finally, no notice is given to a signal strength of the Committee’s initiative, that it will reverse the state’s policy in effect since 1939, of requiring judges, juries, and DEQ regulators to interpret the law so as to “foster” the oil-gas industry “favorably” and “maximize” oil-gas production. The current policy in effect means the DEQ has to work to maximize oil-gas profits, and maximize Michigan’s oil-gas contribution to global warming. The initiative will substitute a requirement that DEQ regulators prioritize water and human health.
As we have reported repeatedly, political momentum favors a statewide ban, such as the one New York announced in December. http://banmichiganfracking.org/?p=2870
The latest Pew poll, after last fall’s elections, showed: “There was a particularly dramatic change of views in the Midwest where increased use of fracking is now opposed by a 47% to 39% margin compared with the majority who favored its use in 2013.”
Today Gov. Rick Snyder’s panel on radioactive waste, which met in secret last fall, issued its report, clearing the way for Michigan to continue taking radioactive frack sludge and other frack wastes to sites in Belleville and Detroit owned by US Ecology. An agreement made by the frack waste company, which operates a Detroit waste processing facility and a processing and Class I landfill facility in Van Buren Township, and the State was to hold off on taking in frack wastes until after the report was issued. That day is here.
The Detroit News reported the release of the panel’s paper today: Mich. panel: no changes in handling radioactive sludge.
The TENORM panel came about after Ban Michigan Fracking broke the story in August that 36 tons of Pennsylvania radioactive frack sludge, held up for weeks with nowhere to go, were approved for disposal in Michigan by Michigan DEQ officials.
The 36 tons of radioactive frack sludge in Washington County, PA held for months at a Range Resource waste impoundment site, was what alarmed us and eventually caused Gov Rick Snyder’s kneejerk reaction to create the TENORM panel. The containers of frack sludge were moved off site some time ago and its final deposition is not known at this time. It did not go to a US Ecology facility in Michigan . . . yet.
Soon after, the Detroit Free Press blasted the news of the PA radioactive waste on its front page. We and volunteers from Committee to Ban Fracking in Michigan held a vigil waiting for the trucks (that never came) at the landfill/processing facility in Van Buren Township, near Belleville, last August. US Ecology’s top radiology guy, Joe Weismann, came out to greet us, after reading this website from all the way out in Idaho. He came to Michigan to do damage control. . . and presumably at that time made the deal with the governor to quiet things down for a while. Weismann did a dog and pony show type presentation to Van Buren Township residents at a township meeting. He was on the TENORM panel.
Ban Michigan Fracking did more investigating about the 36 tons of radioactive frack sludge and FOIA’d the DEQ for the tests of its radioactive content. We also learned about the industry’s system of diluting the high radioactive content by simply mixing it up with inert materials, and depositing all of it into the landfill that way. The 36 tons was moved to some undisclosed location in late October. DEQ confirmed with us today that the 36 tons have not yet come to the US Ecology facility in Belleville. It was also the last request for radioactive frack waste disposal that came to the Michigan DEQ from US Ecology.
The Detroit Free Press did a lot more investigating of the Michigan Disposal/Wayne Disposal landfill, too, finding a history of violations, fines and fires. We dug up the records from Pennsylvania as to what’s come to Belleville and found over 20 tons of drill cuttings and about 315 tons of “flowback fracturing sand,” all from Greene County in Pennsylvania’s southwestern edge where the frack industry is ravaging people’s health.
The governor’s panel, which evaluated the DEQ’s current system of taking in radioactive wastes and saw virtually nothing wrong with it, (as DEQ spokesperson Brad Wurfel predicted) came up with a handful of recommendations that the state could “consider” changing. Such as shuffling around the placement of radioactive waste within a landfill. It also had a former DEQ staffer as the person “representing the public.” We’ll take a better look at the report in the next weeks and make more comments.
And you can too. Michigan DEQ issued a press release that the department will take public comments on the report in a 30-day comment period starting today. Comments can be submitted by email to DEQ-TENORMPublicComments@michigan.gov, or by mail to 525 W. Allegan St., Lansing, MI, 48933.
Committee to Ban Fracking in Michigan, the ballot question committee with hundreds of volunteers from around the state, is more resolved than ever to stop these wastes from coming into the state. The Committee is actively pursuing a ballot initiative that for two years now has rallied voters to ban fracking and frack wastes at the next statewide election in 2016. Frack wastes going to facilities in places such as the Belleville landfill, a waste processing facility in Detroit (also owned by US Ecology), and in the hundreds of injection wells and landfills throughout the state, would be banned once the proposal is passed. To volunteer for, and donate to, the ballot initiative, go to www.LetsBanFracking.org.
The Michigan DEQ does not keep or provide the public any records on the amounts, types, or locations of frack wastes being generated, emitted, processed, treated, stored, or dumped in the state. Any landfill in Michigan can accept radioactive wastes as long as it’s diluted 50 picocuries/gram with other materials. In December we reported on the 2,200 tons of frack waste from Pennsylvania dumped in Michigan based on Pennsylvania’s Department of Environmental Protection’s database, which tracks the waste.
We’ve known this for a while now, but it’s time to get it out there: Michigan is fast becoming a frack waste state.
Part of the story is that Michigan facilities are taking in wastes from other states.
The other part is that the frack industry generated huge amounts of wastes from Michigan frack wells.
The startling news about out of state frack waste is that over 2,200 tons of frack waste from Pennsylvania have come to Michigan in three counties: Wayne, Monroe and Kalkaska.
We learned of this by searching the State of Pennsylvania’s Department of Environmental Protection’s “oil and gas reporting” website. That the State of Michigan Dept of Environmental Quality Office of Oil Gas and Minerals neither tracks the disposal of frack wastes–generated in Michigan or elsewhere–nor provides the information to the public as Pennsylvania does, is troubling.
The Michigan facilities are headquartered in the communities of Van Buren Township, Kalkaska, Detroit and Erie, but exact disposal facilities are not known for the Kalkaska wastes.
Van Buren Township: The Belleville-area twin processing and landfill facilities now owned by US Ecology, called Michigan Disposal and Wayne Disposal, accepted 20.42 tons of drill cuttings (which is TENORM: Technologically Enhanced Naturally Occuring Radioactive Materials) from a Greene County, Pennsylvania horizontal well in 2010 (PA reported it in 2014). And another 315.75 tons of “flowback fracturing sand” from several horizontal wells in Greene County were brought to Wayne Disposal at various times from 2010 through 2013 (but not reported by PA until 2014). See our four stories earlier this year on this website about Michigan Disposal/Wayne Disposal. We do not yet know the final disposition of the radioactive sludge approved for shipment to Wayne Disposal. Story 1, Story 2, Story 3, Story 4.
Kalkaska: Over 400 tons of “flowback fracturing sand” landed in Kalkaska County, according to the State of Pennsylvania’s Department of Environmental Protection website. The materials came from Marcellus shale unconventional wells in Greene and Washington Counties in southwest PA outside of Pittsburgh. Chevron Appalachia LLC is the operator. The wastes went to A-1 Northern (pictured above), an oil/gas waste disposal company, although the exact facility location is not specified. The disposal method is described as “storage pending disposal or reuse.”
Detroit: Detroit got the worst of it. Over 1,466 tons of “flowback fracturing sand” went to the US Ecology facility at 6520 Georgia Street, near Hamtramck which is the former Dynecol facility. The Marcellus shale frack wastes came from horizontal frack wells in a host of Pennsylvania counties–Butler, Clarion, Clearfield, Fayette, Greene, Indiana and Westmoreland–all in 2011 and 2012, but not reported until 2014. The former Dynecol site, which was a hazardous liquid waste processing facility in operation since 1974 “for the Midwest US and Canadian industrial markets,” is now owned by US Ecology, which bought it in 2012, around the same time the frack wastes were brought to Detroit. The company now carries out a number of hazardous operations with radioactive waste, including, according to the DEQ, processing of radioactive frack wastes which are solidified and then shipped to a facility in Idaho. What parts from that “processing” remain in Detroit? We wish we knew.
Erie: And then there’s the Vienna Junction Landfill on the Erie, MI/Toledo, OH border which also has accepted frack waste from Pennsylvania. According to the PA Department of Environmental Protection website again, Vienna Junction took in 6,085.21 tons of frack wastes from horizontal wells located in Tioga County in the reporting period July – December 2012. We’re not including this tonnage in our headline, since we don’t know how much of it landed in Michigan versus Ohio. But it’s close enough to affect Monroe County residents.
These Pennsylvania statistics are just for the first half of 2014. We’ll update this article when the data for the rest of the year becomes available.
That’s just the wastes from one state. Undoubtedly there is more coming here, with regional facilities in Detroit and Belleville that are designed to be regional “hubs” for the industry.
The frack industry in Michigan is also producing its own wastes from operations here. We visited the Waters Landfill in Crawford County this year (pictured below), where solid frack wastes such as drill cuttings (which are classified as radioactive TENORM) are brought. Again, no records are kept by Michigan DEQ on their website. The landfills are not public in many cases. And putting together the picture of where all this frack waste is going is next to impossible.
According to an article by Environment 360 at Yale University, an organization called Downstream Strategies attempted to trace fracking waste from Washington County PA and sites across the US and where it ends up and found they “just couldn’t do it.”
Frack wastes are also brought to Michigan class II injection wells (a total of 1,460, of which 654 the EPA says are for disposal, while the DEQ says disposal wells number 888. Any of Michigan’s old oil or gas wells can also be used for disposal of frack wastes and turned into injection wells). We will report on injection wells in Michigan in an upcoming article.
The Committee to Ban Fracking in Michigan’s ballot initiative would BAN frack wastes from other states from being processed, disposed or stored in Michigan. To make a contribution to the Committee, go to www.letsbanfracking.org.
PDF’s of the downloaded reports from the Pennsylvania DEP website:
by LuAnne Kozma
The news last week, New York’s announcement to turn its moratorium into a statewide ban on high-volume, horizontal fracking, has groups around the country, like ours, celebrating. New York’s governor Cuomo relied on his departmental chiefs of environmental conservation and public health to recommend the decision based on the long awaited report, A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development by the NY state health department. In the end, the NY governor relied on something acting state health commissioner Dr. Howard A. Zucker said: that when it came down to it, in personal terms, Zucker would not want his family to live in a community that allowed fracking. New York is the first U.S. state in a shale-producing area to ban fracking statewide. Grassroots groups in New York are ecstatic, after so many years of working for a ban.
Six new frack wells planned for Michigan
Today in Michigan, however, the frack industry applied to the Michigan DEQ for six new horizontal frack wells for the northern Lower Peninsula: one in Kalkaska County where there are already several wells, and for the first time, three in Grand Traverse County and two in Manistee County. Three are owned or co-owned by the State of Michigan. The others are on private land.
Unlike in other states, the frack industry targets the Michigan A-1 carbonate formation in addition to the shale formation called the Utica-Collingwood shale. The shallower Antrim shale wells have used fracking, but not always horizontal drilling.
That the DEQ will issue these permits is a certainty, as all Michigan “applications” for oil and gas wells get a rubber stamp treatment. Indeed, it is state law that the Michigan DEQ “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.” (MCL 324.61502). Michigan also receives 5% of gross cash market value of the production of natural gas and 6.6% of oil. (MCL 205.303).
This is huge news. It’s not every week that six new wells in the Utica/Collingwood and A-1 Carbonate formations are applied for. All of the wells are not too distant from a proposed new natural gas plant near Elmira, in Otsego County near Gaylord.
The six new applications are as follows:
A140187 is the State Garfield C4-12 HD1 well in Garfield Township in Kalkaska County, proposed to go down to 16,490 feet into the Utica-Collingwood formation. Tiger Development LLC out of Suttons Bay is the fracker.
A140189 is Cozart 1-25 HD1 in Green Lake Township, near Interlochen, proposed to target the A-1 Carbonate formation down about 7,741 feet in this area.
A140192 is McManus 1-1 HD1 in Blair Township, which will go down 7,153 to the A-1 Carbonate formation.
A140196 is Harrigan 3-12 HD1, also in Blair Township, which will target the A-1 Carbonate about 7,438 feet down.
In Manistee County, some more “firsts.”
A140194 is State Manistee & Anderson 1-3 H, in Manistee Township, which will reach the A-1 Carbonate about 5,702 feet down.
A140198 is State Springdale 1-26 HD1, in Springdale Township, also targeting the A-1 Carbonate at a depth of 6,675 feet.
The above linked DEQ list of permit applications for December 15-19, the five WyoTex permit applications for horizontal wells targeting the A-1 Carbonate formation in Grand Traverse and Manistee Counties do not contain the DEQ’s customary “well may be completed using high volume hydraulic fracturing” note. While it is still uncertain if these wells will be completed by fracking as opposed to some other method, we do know that most Michigan A-1 Carbonate wells, especially at these depths, have been fracked in the past. We don’t always agree with the governor-approved pro-frack “Technology” technical report of UM’s Graham Sustainability Institute of September 3, 2013, but it does say this about fracking Michigan’s A-1 Carbonate formation:
“In general, Michigan oil companies have not been technology leaders in oil and gas exploration and production. They have followed much the same conservative (but safe and usually environmentally sound) pathway of many other mid-range producing states such as Ohio and Indiana. This may change with the recent discovery of probable gas and perhaps oil in formations such as the A-1 and A-2 Carbonates and perhaps even the deeper Collingwood and Utica shales (including the Utica in Ohio), but little appears to be known about these on a micro-geological scale and they will be costly to explore and develop based on the few results obtained so far. Directional drilling and fracking will be required, based on what is known of the limited permeability of these formations and the laterals will probably have to be of unusual length to ensure reasonable gas production.” [emphasis in original]
So Michigan continues its fracking program. Meanwhile, Michigan’s big environmental groups say they will focus on regulations for fracking, not a ban.
Democracy in action: Michigan’s Ballot Initiative for 2016
Michigan voters have been working feverently on instituting a ban on fracking and frack wastes using the ballot initiative process. The Committee to Ban Fracking in Michigan (a separate entity), the ballot initiative we started in 2012, responded to the NY ban in a press release, calling for more volunteers and donations. The Committee also urged Michigan health professionals to document how fracking is impacting Michigan’s fracked communities and to speak out about fracking.
To join in these efforts, Ban Michigan Fracking asks everyone in Michigan who would like to see our state become frack-free– and free of frack wastes– to contact the Committee, volunteer, donate, and endorse!
People from around the state in the Committee to Ban Fracking in Michigan organized a protest in Lansing on October 29 while the Michigan DNR auctioned off more acres of mineral rights to the frackers.
TV 10 covered the event here.
The Committee is working on a ballot initiative campaign to ban fracking and frack wastes and could use your donation today! Go here to donate.
And you can keep up with the ballot initiative on Facebook too: https://www.facebook.com/CommitteeToBanFrackingInMichigan
Marathon Oil may have purchased most of the auction’s acreage
From Michigan Oil and Gas News, reporting on the auction:
- “Bidders believed to be representing Marathon Oil Co. dominated the Oct. 29, 2014 auction sale of state of Michigan-owned minerals at the Lansing Center, picking up more than 148,000 of the 152,629.16 acres successfully bid.”
- “All but 164 of the parcels successfully bid were at the minimum $10 per acre, which helped keep the overall average bid per acre at only $17.15 per acre.”
- “The news that Marathon Oil Co. — founded in 1887 as the Ohio Oil Co. — had recently completed a transaction in which it acquired Encana Oil & Gas (USA) Inc.’s Michigan asset marks the return of one of the state’s oldest and most storied producer/operator after an absence of 15 years.”
Below is the Committee’s press release for more information about the ballot initiative:
FOR IMMEDIATE RELEASE
October 28, 2014
Contact: LuAnne Kozma, Committee to Ban Fracking in Michigan
(231) 944-8750 email@example.com
Ballot initiative to ban fracking supporters to protest in Lansing
Charlevoix, Michigan – The Committee to Ban Fracking in Michigan, a statewide ballot initiative campaign (www.letsbanfracking.org), will gather outside the Lansing Center (in downtown Lansing) tomorrow, October 29, to protest the Michigan DNR’s twice-annual auction of state-owned mineral rights. The event takes place Wednesday from 7:00 am to noon. The auction begins at 9:00 am.
The Committee to Ban Fracking in Michigan is a ballot question committee that collected over 70,000 signatures in 2013 for a statewide ban on fracking and frack wastes. The Committee’s proposal is not on this November’s ballot. The group is working on placing it on the next statewide ballot in 2016.
“The State’s role in creating more fracking starts with the DNR auction of mineral rights,” said LuAnne Kozma, the Committee’s campaign director. “In addition to receiving royalties from the gas and oil industry for leasing mineral rights, the State also receives income from the production of oil and gas, and is required by state law to ‘foster the development of the industry along the most favorable conditions,’ part of the current law our ballot initiative will overturn along with a ban on fracking and frack wastes.”
The group cites the continued push by the frack industry, supported by the State, in approving radioactive frack sludge from other states at a waste facility in Van Buren
Township in Wayne County, the start of new pipelines that will bring fracked gas through the state, and new natural gas plants proposed in Marquette and Gaylord. The fracking giant Encana recently sold its mineral rights to energy giant Marathon.
“Nearly every day, Michiganders are facing a new threat from the frack industry as the State government helps industry turn our beautiful state into Gasland, whether it’s from radioactive frack waste or new natural gas plants. All of this industrialization is going to exacerbate climate change and health impacts,” said Kozma.
The DNR will auction off more state-owned mineral rights on thousands of acres in the following counties: Arenac, Clare, Crawford, Gladwin, Grand Traverse, Ingham, Isabella, Kalkaska, Manistee, Midland, Missaukee, Montmorency, Oceana, Osceola, Presque Isle, and Roscommon.
Public notice about the auction here:http://www.michigan.gov/documents/dnr/ProposedPubNotice_464073_7.pdf
Michigan DNR site about the auction here:
Committee to Ban Fracking in Michigan’s brochure here:
# # #
 MCL 205.303
 MCL 324.61502
 Series of articles at www.banmichiganfracking.org: http://banmichiganfracking.org/?p=2455
 Detroit Free Press, “Rival Projects Compete for OK to Build Gas Pipelines,” October 12, 2014. http://www.freep.com/story/money/business/columnists/tom-walsh/2014/10/12/tom-walsh-dueling-pipelines/17046379/
 Midland Daily News, “Fracking Michigan, Here We Go Again,” October 13, 2014. http://www.ourmidland.com/opinion/editorials/fracking-michigan—-here-we-go-again/article_69726cb9-a734-5afd-90f2-3c60f424263c.html