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.

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.

Protest frack waste expansion in Detroit

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Protest Against Radioactive Fracking Waste

Committee to Ban Fracking in Michigan volunteers, Ban Michigan Fracking, Metro Detroiters for Bernie, and residents in the nearby community from Hamtramck and Detroit around the Detroit US Ecology hazardous waste facility gathered for a protest October 3. Photo: Jim West.

By LuAnne Kozma

Forty-five activists and community members gathered on October 3, 2015 at the US Ecology hazardous waste facility in Detroit to protest expansion of the facility. They included nearby residents from Detroit and Hamtramck, retirees, nurses, professors, lawyers, students, engineers, photographers, teachers, former and current city workers, a Detroit school board member, and retired postal workers.

In addition to Ban Michigan Fracking, the groups Beyond Nuclear, Don’t Waste Michigan, Metro Detroiters for Bernie, Carrie Rogge Block Club, Great Lakes Water Protection Committee, Detroit Workers Voice, and Michigan Citizens for Water Conservation, joined members of a local mosque and volunteers of Committee to Ban Fracking in Michigan from around the state.

Protest Against Radioactive Fracking Waste

Photo by Jim West.

The Detroit facility, which processes frack wastes, has applied to the Michigan Department of Environmental Quality to expand its operations tenfold.

Ban Michigan Fracking has reported on the amount of frack waste coming to Detroit from Pennsylvania for many months (*see below). The Detroit Free Press reported on the expansion on September 11, and the DEQ’s public comment deadline the next day, Saturday, September 12.  BMF wrote public comments to the DEQ, demanding an extension of the public comment period, demanding that DEQ deny the permit, and discussing the harms of radioactive frack wastes and TENORM.

We Demand a Public Hearing by DEQ

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Nearby residents concerned about the frack waste expansion and harm to families. Photo by LuAnne Kozma.

The DEQ granted the extension of the public comment period to October 12, but no public hearing has been planned. BMF encourages people to write DEQ and demand a public hearing. The nearby community and all Michigan residents deserve to be heard. Write comments to: Richard Conforti, MDEQ, at confortir@michigan.gov or by mail c/o DEQ, P.O. Box 30241, Lansing, Michigan, 48909-7741.

US Ecology admits liquid wastes are going into the Detroit sewer system; Michigan DEQ denies it

The Detroit Free Press reported on September 11:

In an e-mailed response to Free Press inquiries, US Ecology spokesman David Crumrine said there have been no adverse environmental impacts during the 40 years the plant has operated. The plant takes hazardous and non-hazardous, solid and liquid wastes from the automotive, steel, plating and other area industries, as well as retail wastes, he said. Waste is treated to remove or stabilize its hazards as required by state and federal regulations, and then shipped for disposal at offsite landfills. Liquids are treated until they are safe to dispose of via the Detroit wastewater treatment plant. [emphasis added]

This was startling news, and what BMF had speculated for some time. The company’s admission was proof that wastewater from processing hazardous wastes at the site — 40% of which comes from out of state — goes directly into the public water and sewerage system.

Why else bring out-of-state frack wastes for processing to Detroit? When liquid wastes that are too hot radioactively to be disposed of here — DEQ’s Ken Yale has told BMF that wastes are solidified in Detroit first and then shipped for disposal at US Ecology facilities in Idaho — are brought here on their way west, there’s got to be a practical reason. Why wouldn’t Pennsylvania’s frack wastes be sent directly from Pennsylvania to Idaho?

DEQ’s Conforti denied that US Ecology is putting wastes into the Detroit Water and Sewerage System, as quoted in the Detroit News:  “Nothing will be released into the water supply — Lake Huron or the Detroit River.”

Other groups, such as the American Human Rights Coalition, based in Dearborn, are also opposed to the expansion.  AHRC is raising community awareness and demanding answers to what impact the expansion would have on the Detroit water system.

Dealing with the contaminated and radioactive waste is getting to be a real problem for the fracking/oil and gas industry. According to industry site Fuel Fix: “EPA to block drillers from sending wastewater to municipal treatment plants“:

“In Pennsylvania, drillers are worried about a double whammy — that EPA will follow up its currently proposed zero-discharge rule for municipal treatment plants with another standard blocking them from sending fluids to centralized facilities too.”

Which could pose a problem for facilities like US Ecology.

Speakers at the Protest

Protest Against Radioactive Fracking Waste

Local resident Ronnie Mixon, who also spoke at the protest. Photo: Jim West.

* Kevin Kamps, radioactive waste watchdog from Beyond Nuclear, gave some background on how harmful radioactivity is to human health.

Elena Herrada, a member of the Detroit School Board told the crowd that the school board passed a resolution that the DEQ deny the permit, in light of harm to Detroit school children.

Dawn DeRose, of the Committee to Ban Fracking in Michigan, gave an urgent pitch for volunteers to sign up to get signatures to get the Committee’s ban initiative on the 2016 ballot before the November deadline.

Protest Against Radioactive Fracking Waste

Photo by Jim West.

The signature deadline is in November. The Committee reported in September collecting over 100,000 signatures toward the 252,523 requirement and intends to make it on the ballot. The ballot initiative would ban the processing and storage of frack wastes.

 

 

* In December 2014 we reported on the wastes coming from Pennsylvania to US Ecology in Detroit reported by the Pennsylvania Department of Environmental Protection :

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. – See more at: http://banmichiganfracking.org/?m=201412#sthash.qJ2D2iNW.dpuf

Other sources on radioactive wastes and: Rachel Treichler, attorney from New York, has this list of sources, “Materials on Radioactivity in Gas and Gas Drilling Waste.”

New DEQ fracking rules don’t help; we still need a ban

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A frack well in Gladwin County, Wiley 1-81 HD1, in 2012. Photo by LuAnne Kozma.

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.
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This frack well fragmented a state forest in Antrim County, 2011, (State Mancelona 1-28 HD1). Photo by LuAnne Kozma.

  • 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.
  • IMG_0113Wastewater, 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.
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 the many injection wells used to dispose of horizontal frack wastes in Michigan, the Slowinski injection well in Kalkaska County. Photo by LuAnne Kozma.

  • 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.
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    Students protest in Mt. Pleasant, 2012. Photo by LuAnne Kozma.

    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.

Committee to Ban Fracking in Michigan launches ballot initiative with strong support according to new poll of Michigan voters

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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. 

The Committee to Ban Fracking in Michigan is one of the two prominent groups seeking a ban on fracking, by doing a highly-visible ballot initiative statewide. The U of M didn't really notice it. Washtenaw county coordinator Nancy Witter collects signatures at a booth at the Ann Arbor Art Fairs in July 2013. Photo by LuAnne Kozma.

FOR IMMEDIATE RELEASE

May 19, 2015

CONTACT: Committee to Ban Fracking in Michigan, www.LetsBanFracking.org

LuAnne Kozma, Campaign Director, 231-944-8750 luanne@letsbanfracking.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

 

ALMA
Saturday, May 23, 9:00 a.m.
Scottish Highland festival, downtown Alma

ANN ARBOR
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

BOYNE CITY
Saturday, May 23, 9:00 a.m. to noon
Boyne City Farmers Market, Veterans Park, Lake Street

CHELSEA
Saturday, May 23, 10:00 a.m. to noon
Chelsea Farmers Market
Downtown on 222 S. Main St, Chelsea

DETROIT
Eastern Market
Saturday, May 23, 10:00 a.m. to noon
Meet between Sheds 2 and 3

GRAND RAPIDS
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

MUSKEGON
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

PETOSKEY
Friday, May 22, 10:00 am to 1:00 pm
Outside Roast and Toast Café
309 E Lake St Petoskey, MI 49770

ROCHESTER
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

SOUTH HAVEN
Saturday, May 23, 10:00 a.m. to noon
South Haven Farm Market
Behind the South Haven Library, in the park near pavilion

TRAVERSE CITY
Friday, May 22, 6:00 to 8:00 p.m.
Horizon Books, downstairs
243 E Front St, Traverse City, MI 49684

YPSILANTI
Saturday, May 23, 9:00 a.m. to noon
Ypsilanti Depot Town Farmers Market
100 Rice St., Ypsilanti

Michigan says “bring it on” to more radioactive frack wastes

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2.13_frack_1.2Today 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.

Radioactive frack sludge in Washington County, held for months at a Range Resource waste impoundment site, is now off the site and gone to who knows where. Submitted photo.

The 36 tons of radioactive frack sludge from PA sat here for months and then disappeared. Submitted photo.

 

 

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.

Committee to Ban Fracking in Michigan members protest outside frack waste facility near Belleville, August 2014.

Committee to Ban Fracking in Michigan members protest outside frack waste facility near Belleville, August 2014.

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.

NY Bans fracking with CBFM logo

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Michigan frackers apply for 6 more wells, while NY bans fracking

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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.

fracking poster

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.

The three wells for Grand Traverse County--the first time this county has seen a  horizontal high-volume well–planned by a company called WyoTex Drilling Ventures LLC–are:

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:

http://graham.umich.edu/media/files/HF-02-Technology.pdf :

“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!

www.letsbanfracking.org

NY Bans fracking with CBFM logo

Committee to Ban Fracking protests in Lansing

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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.

Anti-Fracking Group Protests Sale of Oil and Gas Rights on State-Owned Land

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 luanne@letsbanfracking.org

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,[1] and is required by state law to ‘foster the development of the industry along the most favorable conditions,’[2] 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,[3] the start of new pipelines that will bring fracked gas through the state,[4] and new natural gas plants proposed in Marquette and Gaylord. The fracking giant Encana recently sold its mineral rights to energy giant Marathon.[5]

“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:

http://www.michigan.gov/dnr/0,4570,7-153-10368_11800-169044–,00.html

Committee to Ban Fracking in Michigan’s brochure here:

http://www.letsbanfracking.org/images/CBFM%20_2014_brochure_with%20links_FINAL.pdf

# # #
[1] MCL 205.303

[2] MCL 324.61502

[3] Series of articles at www.banmichiganfracking.org: http://banmichiganfracking.org/?p=2455

[4] 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/

[5] 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

Update on radioactive frack wastes in Michigan

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Numerous trucks went in and out of the Michigan Disposal facility in Belleville when we picketed for 9 hours on August 21. Several of the loads were these “roll off containers” similar to the ones used for radioactive frack sludge. Photo by LuAnne Kozma.

by LuAnne Kozma

Election-year politics seems to have intervened temporarily with the radioactive frack wastes from Washington County, Pennsylvania (where the wastes remain).  Governor Rick Snyder announced on August 25 that he is creating a panel to “review disposal standards” of the state’s radioactive waste. Additionally the company taking in the radioactive materials from Pennsylvania said it would temporarily suspend additional shipments until the panel’s review is complete.

MLive noted Michigan DEQ spokesperson Brad Wurfel’s prediction that “the review panel will conclude that existing Michigan standards are appropriate.” Wurfel’s admission that this is a charade is quite bald.

For his part, Democratic challenger Mark Schauer, who never mentions fracking whatsoever, opportunistically stated on his website that only out-of-state radioactive waste is his issue: “We can’t allow Michigan to be a dumping ground for radioactive waste that other states won’t allow in their own landfills.” Which is partly good, and of course it’s politically correct to not like radioactive waste, except that he doesn’t cover radioactive frack waste created locally.

Tonight in Van Buren Township: presentation by Wayne Disposal to calm people’s fears about the radioactive wastes in their backyards

The Belleville Independent reports that tonight, September 2, the director of the landfill, Wayne Disposal, will make a presentation at the Van Buren Township meeting and answer questions.  The public has to put the questions on cards. Township supervisor Linda Combs told the newspaper radioactive shipments from frack wastes were announced October 1, 2014 after public hearings and EPA approval. The local paper reported earlier this year that the landfill’s liner had ripped. In two articles about the torn liner, dated January 2  and February 7, it reported that Wayne Disposal does not take in radioactive waste.

What’s in radioactive frack sludge, anyway?

Here’s one study of the stuff:

Rich AL and Crosby EC, “Analysis of reserve pit sludge from unconventional natural gas hydraulic fracturing and drilling operations for the presence of technically enhanced naturally occurring radioactive material (TENORM),” New Solut. 2013;23(1):117-35. doi: 10.2190/NS.23.1.h.

Michigan frackers are producing frack wastes and it’s not tested for radioactivity

Back in 2011 we tried to get more information from the Michigan DEQ regarding the frack wastes that were being created by Michigan’s impending frack industry. We were told in a series of emails from MDEQ’s Paul Jankowski that “there are no rules requiring an oil/gas field waste disposal well to test for radioactivity.”  In this series of questions, we got the following answers:

BMF: Does this mean there is no rule requiring disposal well operators to test material for radioactivity before disposing of it into the well?

Jankowski: Correct.

BMF: And is there also no rule requiring that gas wells test flowback before sending it to a disposal well?

Jankowski: Correct.

On Michigan drilling permits, the operator states if there is a “reserve pit” and whether the materials will be “solidified on site.”   If there is a landfill where the materials are to be brought, the landfill is sometimes named.

For reference: Michigan Disposal Inc’s website, with permits

Media articles about the radioactive frack sludge:

Matheny, Keith, “Michigan landfill operator suspends receipt of low-level radioactive waste,” Detroit Free Press, August 25, 2014.

Ortzman, Rosemary, “Wayne Disposal official to bring information to Sept 2 VBT board meeting,” Belleville Independent, August 28, 2014.

Smith, Heather, “Frackers are sending sludge to the mitten state,” Grist, August 19, 2014.