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“Petroleum-238: Big Oil’s Dangerous Secret and the Grassroots Fight to Stop It”

Book tour and author talk by Justin Nobel

June 5, 2024, 5:30 to 7:00 pm

Charlevoix Public Library, 220 Clinton Street, Charlevoix MI 49720

Join us in Charlevoix to hear award winning journalist Justin Nobel talk about his new book. Nobel has investigated the oil and gas industry for a decade. Some of his reporting in Rolling Stone magazine includes “America’s Radioactive Secret” and “The Oil and Gas Industry produces Radioactive Waste. Lots of it.”

We are pleased to offer this in-person opportunity with Justin after our event in Kalamazoo had to resort to Zoom during the pandemic in 2020. (That talk can be heard on our Events page)

See Justin Nobel’s entire book tour and how to purchase the book here:

NOW IS NOT THE TIME for the EPA to give up control of Michigan’s toxic injection wells!

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April 15, 2021


Please write the EPA today!

Michigan’s Oil, Gas and Minerals Division of the Department of Environment, Great Lakes and Energy, (EGLE, formerly the DEQ) applied to the EPA for total control over oil and gas injection wells.

Now it’s been revealed that a top-level employee in the Oil, Gas and Minerals division responsible for compliance and enforcement is charged with embezzling—to the tune of over $1.5 million.

EGLE’s “primacy” application to the EPA completely omitted the required section asking the State of Michigan to detail its history of compliance and enforcement, what violations there have been, contamination reports, well egle-ogmd-active_class_II_2020_691824_7casing failures, and citizen complaints. None of it is there. The public, and the EPA, know NOTHING about whether the State is properly enforcing the laws and actually protecting Michigan’s underground drinking sources! Yet, EPA has approved Michigan’s application.


The whole process has not been transparent. EPA held a public hearing last May 2020. EPA’s public notice system was inadequate and interested individuals and organizations interested in injection wells in Michigan were not noticed directly. Consequently, no Michigan residents showed up or wrote in opposition.

Just the gas and oil industry did! The industry is ecstatic about the idea of EGLE being totally in charge of injection wells filled with toxic oil and gas wastes! Yet thousands of Michigan residents have shown up at EPA hearings in Michigan cities and townships over injection wells proposed for their community over the years.

ACTION NEEDED by April 19:

Write a simple “public comment” to the EPA today to stop the handover of these toxic wells to Michigan’s Department of Environment, Great Lakes and Energy.

When: Deadline for submitting comments is April 19, 2021.

What to do: 

Go to the Federal Register webpage for public comments on Michigan’s Primacy Application to the EPA here:

Hit the Green “Submit a Formal Comment” button at the upper right, and a form will appear. Put your comments in the box for comments. You can upload files as attachments if you wish. Provide your email. Click the correct button if you are submitting comments as an individual or an organization. Best not to comment anonymously, it will be ignored.

You can read the Primacy Application, download it here at

You can read all the 20 supporting documents on the website.

Suggested Comments & Talking Points:

  1. I object to the State of Michigan’s Underground Injection Control Class II (UIC) Program for primacy and EPA’s determination that the State’s program is consistent with the provisions of the Safe Drinking Water Act (SDWA) at Section 1425 and the EPA’s granting of Michigan’s application. 

[2. If you have been receiving notifications from the EPA regarding injection well permits, and did not receive notification from EPA about the public hearing held last May 27, 2020, state that.]

3. I request a new public comment period and that a new public hearing take place.

4. I request that the EPA publish a timely withdrawal in the Federal Register informing the public that the rule on Michigan’s primacy application will not take effect.

5. I object to Michigan’s proposed rule about public hearings. No notice about a proposed injection well would be publicized in a newspaper. The notice given only to nearby landowners would not even mention that a person can request a public hearing, or how they can do so. Worse, it will be virtually impossible for anyone to ever get Michigan Department of EGLE to hold a public hearing because to request one, you must also submit a written comment that has “substance” and “relevance” to the underground injection well criteria, and only the Supervisor of Wells would make that decision before a hearing is granted. This is too high a burden to get a public hearing. EPA’s public hearing process is by law much better: if there is “significant public interest” in holding a hearing, EPA will hold one, and a person does not need submit a comment ahead of that request for a hearing. Michigan’s rules do not meet the EPA’s own criteria for public participation and cannot be approved. Michigan residents need a real way to participate in these significant decisions affecting our groundwater!

6. I understand that a major portion of the required sections of the Application for Primacy were completely missing in the application: the section detailing the past history of how Michigan has conducted its oil and gas program, its past practice in the use of enforcement tools such as fines and citations, its history with repeat violators, well failure rates, and cases of contamination of underground water sources based on actual field work and citizen complaints. Without any of that in the application, the public has no way of knowing whether Michigan has an “effective” Underground Injection Control program under the Safe Drinking Water Act, and neither does EPA. EPA cannot grant approval of primacy.

7. The embezzlement charges brought by Michigan’s attorney general against a high-level compliance and enforcement supervisor, and the Department’s incompetence not discovering this for years, combined with the lack of any information in Michigan’s application about the history of Michigan’s enforcement and compliance with the federal Safe Drinking Water Act, demands that EPA pull Michigan’s application.

8. At a future EPA public hearing and comment period I wish to comment on concerns that I have regarding the Underground Injection Control Program, including any number of subjects that might affect our underground sources of drinking water, surface waters, and public health, including the State of Michigan’s undermining and circumventing of this program by allowing oil and gas wastes (“brine”)  from oil and gas drilling and recovery operations on Michigan’s roads for ice and dust control.

9. [Add whatever other comments you wish, especially about injection well issues in your area.]

The map accessed here: OilAndGasWellsInMichigan WMU can be enlarged to see the over 1,460 Class II injection wells (in blue) in Michigan. Any existing production oil/gas well can also be converted into injection wells. Injection wells are use for disposal of oil and gas industry wastes—very toxic stuff—and also for “enhanced oil recovery” and “enhanced gas recovery” and even CO2 injection for the purpose of getting every bit of oil and gas out of the ground. 


Ban fracking proposal may be on Michigan 2020 ballot

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Petitions in boxes forklift POSTER copy

Oral Argument in Michigan Court of Appeals on March 3

By LuAnne Kozma

Michigan voters may see a proposal to ban fracking and frack waste on the November 2020 ballot if the Committee to Ban Fracking in Michigan wins its lawsuit against the State of Michigan in time. The Committee’s vetted 270,962 voter signatures — 7% more than the required minimum —  submitted before the November 2018 election, currently are held up in the Michigan courts.

I’ve directed the Committee’s campaign since 2012

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. This is our third petition. Thousands of Michigan voters want this question on the ballot. We are shocked that the State has treated this campaign so unlawfully and so unfairly.

PNG of oral argument 2020

The case hinges on two questions: what determines the actual election date a statutory initiative is to be voted on, and whether a law limiting signature-gathering to 180-days is unconstitutional.

What the ballot language says: The proposal would ban fracking and acidizing in horizontal wells and ban all wastes–solids, liquids and gases–from any horizontal well that was fracked or acidized. It also would change the longstanding policy of the oil and gas state regulators who must “foster the development of the industry along the most favorable conditions” and “maximize” oil and gas production. In its place is language that would require the State to put human health, the environment, water, plants, animals, and climate as its priority over oil and gas development.

To read the actual language, go to the Committee’s website, and click the Ballot Language tab.

Signatures denied, voters spurned

When we got to the door of the Secretary of State in November 2018 with 47 boxes of signatures, she refused them. Why?  Because the signature sheets each bore a caption saying the proposal was to be voted in 2016, the date the Committee originally hoped for when it started collecting in 2015.

But no matter.  Mistakes on petition sheets have been allowed in past campaigns.  Indeed, the Canvassers had approved the form of the Committee sheets though they contained an obvious different mistake:  The sheets made no mention that the Legislature itself could enact the proposal with no citizen vote, as it did in 2018 with the MI Time To Care petition.  That petition itself had a mistake.

According to the Michigan Constitution, it is timing of actions of the Canvassers and Legislature — not what the Committee wrote on the sheets — that determines the election date (if there even is an election).  Gretchen Whitmer and Dana Nessel, the current governor and attorney general, could see that when they were presented as candidates with the Committee petition in April 2018.  They signed anyway.

In turning the Committee away, the Secretary of State cited the law that requires signature submittal 160 days before the election where the proposal is to be voted. But the Committee was in plenty of time before the 2020 election, we answered, and the election date is determined by the Constitution not what is written on the signature sheets.

The State said they’d take the boxes only if a court ordered it.  We put them into professional storage. We were furious.

We had sued the State over the 180-day signature-gathering law in 2016 and 2017.  The courts dismissed that case because it was not yet “ripe.” The 180-day law would only apply to us after we filed signatures, the Courts ruled. But importantly, the Secretary of State explained to three different courts how the Committee could eventually ripen it:

“The [Committee] may continue to circulate their petition without any interference. . . .If and when [the Committee] obtains the additional signatures required … they will be able to file their petition.” 

What part of that were we not to understand? The court had made specific note that the Committee was getting signatures using the “same petition sheets.”  The State briefs had been saying in effect the petition sheets were ok, even with the mistaken 2016 election date on the front of every one of them.

The State is now saying that when we “tendered” the 270,962 vetted signatures we didn’t “file” them.  But the two words mean the same thing, as even our Supreme Court has acknowledged.

It is also saying the campaign actually died on the day the Committee sued in 2016, and the courts’ ruling on the ripeness issue was a waste of everyone’s time.

The State does not contend that the signature sheets misled or misinformed Whitmer, Nessel, and the other signers.

We started the suit in December 2018. Last summer, the Court of Claims ruled that the 2016 date on the front of the petition sheets, while not required by any law, did matter just because we did put it there. The Court did not notice the Constitution’s description as to the election where a proposal is to be voted, if it is voted at all.

What the State wants the courts to go along with is that a simple misstatement about the constitutional process a petition goes through on the front of the petition, actually can supersede the Constitution. If it were that easy to change the Michigan Constitution by simply misstating something on the front of a petition, everyone would be doing it.

The State ignores the Constitution’s language about the election where a statutory proposal is to be voted, and even improperly quotes Article 2 Section 9 by leaving out the pertinent part!

The State said to all three Michigan courts in 2016-17 that the way to ripen our challenge to the 180-day law, was to keep collecting and then file our petition.  Today it is doing an about-face, saying our petition died on June 1, 2016.  Our “estoppel” argument says the State can’t do this.  It is a matter of basic transparency.

A history of the 180-day signature-gathering law

The rest of the case will have to do with the 180-day signature gathering law and its unconstitutionality. Because the issue has not yet been fully briefed, we don’t expect a full decision on the case after March 3.

What we didn’t realize when we first started our campaign in 2015, trying to get on the 2016 ballot, was that ballot initiative law in Michigan had not been properly followed by the State of Michigan for 30 years. As most other ballot initiative campaigns had done, we had understood, wrongly, that the limit on signature collecting was strictly limited to 180 days. Actually, the law stated there was a “rebuttable presumption” that signatures older than 180 days were “stale and void.” Most campaigns had assumed that was a hard and fast rule.

After those first 180 days, when we had collected about 150,000 of the 252,523 needed, we discovered from the Marijuana campaign that the law was not quite what it seemed. In 1986, the Canvassers had come up with a policy outlining a method to rebut the presumption that “stale and void” signatures were invalid. The State had kept this policy under wraps; it was not spelled out in the how-to guide for ballot campaigns. On top of that, the Canvassers’ method for rebutting was an impossible one that no campaign could ever achieve.  It required contacting thousands of signers or county clerks individually and having them sign affidavits or certificates (by the clerks) attesting to signers’ voter registration status.

How did such a crazy thing come about?

Lee Beckette photo

Lee Beckett, from a newspaper story in 1973.

Back in 1970, Ms. Lee Beckett — a “housewife from Grand Rapids, mother of five” as she was usually described in media stories — had a mission: to amend the constitution using ballot initiative, and hold Legislators more accountable for their pay raises and pension raises.

She was opposed to the way Michigan Legislators got these raises in an automatic fashion if they ignored, and did not vote on, a commission’s recommendations for the increases. Beckett and her “Legislative Salary Amendment Committee” collected about 153,000 signatures in 1970, 1971 and 1972 to get their proposal on the 1972 ballot, and then continued collecting in 1973 for the 1974, ballot. Leaders of the Conservative party and the Human Rights party, (Zolton Ferency) joined the campaign.

In 1973 legislators became alarmed, and enacted a law to stop the campaign by limiting signature gathering to 90 days, then changing it to 180 days. Ms. Beckett said in the press, “180 days is too short a period in which to collect . . .  It’s an attempt to limit our constitutional rights.” Newspapers at the time called out the Legislature for its blatantly retaliatory act.

Frank Kelley Voids Time limitBeckett worked to get Attorney General Frank Kelley to issue an opinion on the new law. He did in 1974, but too late to affect her Committee’s campaign.

Kelley opined that the 180-day signature gathering law was unconstitutional. Citing a Michigan Supreme Court case, Wolverine Golf Club v Secretary of State, (which is still good law today), he wrote “petitions and the signatures affixed to them are valid for as long as a particular basis (vote cast) remains in effect . . . hence, signatures on petitions are to be considered valid so long as they are gathered during a single four-year term bounded on both sides by a gubernatorial election.” Wolverine Golf Club also struck down a law that gave a deadline by which signatures for statutory initiatives would have to be submitted.

After Kelley’s opinion, for the twelve years from 1974 to 1986, the people of Michigan exercised their constitutional right to collect signatures for ballot initiatives during the four-year period between governor’s elections. Proposals got on the ballot, and some were voted into law.

In 1986, two constitutional amendment petition groups submitted signatures. Each campaign had collected signatures for three and a half years. A fossil fuel company, Consumers Power, didn’t like one of them, and sued the State to reinstate the 180-day law and prevent the proposal from appearing on the ballot.

There are differences between two articles of the Michigan constitution, Consumers Power argued, one that governs statutory initiatives creating or amending a statute, (Article 2 Section 9) and one that defined initiatives that amend the constitution (Article 12 Section 2).  These provisions gave the Legislature power over the constitutional type, but not power over the statutory type. The State argued Attorney General Kelley’s position — that the 180-day restriction was unconstitutional for both types of initiatives, and that the people have four years to collect signatures.

A lower court decided in Consumers Power’s favor. The State had to comply, declaring the two ballot proposals  ineligible for the November 1986 ballot. With the 180-day limit in effect, to allow for a method of rebutting “old” signatures, the Board of Canvassers came up with the impossible method described above. Meanwhile, the State continued appealing the decision to the Michigan Supreme Court, which ultimately upheld Consumers Power.

Consumers Power did not apply to statutory initiatives

However, the Consumers Power court decision was solely about the issue whether the 180-day signature gathering law was constitutional as to Article 12 Section 2, initiatives to amend the constitution.

The court made no ruling about Article 2 Section 9, which is the one governing the Committee to Ban Fracking in Michigan.  That means Frank Kelley’s opinion still held for statutory initiatives like ours.

For some strange reason the State figured all ballot initiatives for practical purposes had only 180 days to collect signatures. No one was going to be able to rebut hundreds of thousands of signatures with hundreds of thousands of affidavits, assuming you could even find the signers again.

When our Committee together with the Marijuana campaign dug into this history, we appealed to the Board of State Canvassers, making presentations and writing legal memos and letters. When challenged by Committee’s attorney Ellis Boal, Director of Elections Christopher Thomas could not name a single court decision that overturned the Wolverine Golf Club decision.

We had them in a bind. They could not defend their decision to treat both types of initiatives in the same manner. Ours is a statutory initiative under Article 2 Section 9, which was not affected by the Consumers Power decision. We had 4 years to collect signatures.

Even if we were to be held to the 180-days but older signatures were rebuttable, we argued then, that there was a better way to prove older signatures “valid.”  There was no need to contact the 83 county clerks.  Since the early 1990s, the Michigan “Qualified Voter File,” a statewide database created by all the clerks collectively, has provided the official proof whether someone is or is not a registered voter. I argued in letters to the Canvassers, that the Qualified Voter File contains all the clerk “certificates” as demanded in their wacky 1986 policy.

Hearing this, the Director of Elections proposed a new policy, but the Canvassers refused to go along with it.  Legislators had other plans to stop the ban fracking and marijuana campaigns: change the 180-day signature gathering law.

In spring of 2016, a new version of the law was passed by the House and Senate, making the 180-day limit hard and fast. Signatures older than 180 days simply “shall not count,” whether they are valid or not.  We and the marijuana campaign testified against the bill. Lawyers for the oil and gas industry and Michigan Chamber of Commerce argued for it.

The governor signed it into law that June.  It absolutely invalidates perfectly valid signatures by validly-registered voters. It’s even more unconstitutional than before.

To read the briefs in the case, go to the Committee’s website, and click the Lawsuits menu.


Kozma is the campaign director for Committee to Ban Fracking in Michigan (a ballot question committee) and president of Ban Michigan Fracking (an educational non-profit, and this website). She is an individual co-plaintiff in the case, Committee to Ban Fracking in Michigan v Secretary of State. 

Residents pack Gladwin injection well hearing

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Now they have to pack the EPA with substantive written comments

Public Comment Deadline is June 22, 2018 (midnight postmark).

How to comment:

Send comments by email to Janette Hansen at EPA,, or by mail postmarked not later than midnight June 22, 2018 to: Janette Hansen, U.S. EPA, Water Division, UIC Branch (WU-16J), 77 Jackson Blvd, Chicago, IL 60604-3590. Put “Grove #13-11 well, draft permit number MI-051-2D-0031 in the subject line.


Over 200 people packed a public hearing and meeting held by the US Environmental Protection Agency in Gladwin on June 19 at Gladwin High School to find out about and give public comment on a proposed injection well for Sage Township. The injection well permit sought by Jordan Development LLC would convert an existing gas well into a disposal well that would service two nearby oil and gas wells by a pipeline, and allow the company to dispose of 20,000 barrels of oil and gas wastes daily, indefinitely.

Attendees were frustrated to learn that a proposed pipeline to carry the toxic waste  (repeatedly called “water” by the Jordan Development representative) from the wells to the injection well, while just 3 feet underground, was not a part of the EPA’s authority, and could not be part of the EPA decision. Residents continually pointed out how little information was really revealed by the draft permit or the EPA spokespeople. When asked what chemicals were in the benign-sounding “brine,” EPA’s Janette Hansen replied “It’ll be a long list.” The “area of review” for an injection well is only 1/4 mile, while residents clearly were concerned about impacts beyond that short distance.

Numerous residents from Gladwin County and neighboring counties got up to the mic to ask questions during the public meeting, and to make statements during the hearing.  Teachers, scientists, doctors and other residents were of one mind and against the permitting of the well, citing potential health risks, water contamination, interference with old abandoned wells in the area, and the seepage of the waste in the permeable  underground formations that might find its way far from Gladwin county. A long time resident brought in some of his well water and poured some glasses for the EPA staffers to see. His water became salty 22 years ago and he still doesn’t drink it. “Think about the children,” he said, and warned the staffers to not drink it.

One young woman resident, bald and wearing a breathing mask, after telling her story of being in stage 4 cancer after having breathed the vapors in the area, warned residents of the harmful air toxins that would come from oil and gas waste. She received a standing ovation.

One resident prefaced his comments by saying he was born and raised on the Cedar River and got his masters degree in fisheries and wildlife. As a scientist, he said he was concerned about the well failure rates and pointed out the hundreds of leaks nationwide. Letha Raymond from Clare County voiced her concerns about the health and safety of area residents and the effects of injecting oil and gas wastes in an injection well with so many old oil and gas wells in the area that are not capped. Amy Kruske pointed out that a letter to the editor and residents’ requests for a hearing was what alerted residents to the proposed injection well and led to the hearing

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Ellis Boal and LuAnne Kozma, representing Ban Michigan Fracking, attended and gave comments regarding seismicity and well casing failure. Residents are urged to submit public comments concerning the process, geologic siting, well engineering, and operation and monitoring standards. Kozma noted that the EPA was asked the question a year ago at a similar public hearing for an injection well in Barry County: “What is Michigan’s well casing failure rate?” and the EPA said it did not know. At this meeting in Gladwin, a resident asked the same thing and the answer was the same: They do not know.

Kozma requested a new public hearing and urged residents to do the same.

Kozma, Boal, and other Committee to Ban Fracking in Michigan volunteers were there with information sheets about fracking and frack wastes, and collected over 210 signatures on the statewide ballot initiative petition that night.

FOR MORE INFORMATION ABOUT THE PROPOSED INJECTION WELL: The fact sheet and draft permit are available on the EPA website here.


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

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Updated March 23, 2018

by Ellis Boal

Call to action

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

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

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

Background of primacy in Michigan

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

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

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

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

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

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

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. Michigan doesn’t need it either.

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

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

2014: Michigan seeks injection primacy

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

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

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

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

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

As examples, EPA noted:

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

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

The same year Kentucky sought primacy and EPA granted it.

The new DEQ bid

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

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

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

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

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

DEQ emphasizes:

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

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

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

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

The public hearing — Industry

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

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

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

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

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

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

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

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

The public hearing — MCWC

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

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

MCWC will be following up with written comments.

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

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

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

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

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

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

BMF added further comments on March 16. Excerpts:

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

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

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

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

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

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

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

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


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

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

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

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

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

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

If you are a DTE customer and you don’t want your electricity prices to increase 133% to fund a natural gas plant when wind and solar plant would be cheaper you should  call Michigan Public Services Commission

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

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by Ellis Boal

Updated February 15, 2018

Updated May 14, 2020

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

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. 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, 2018, 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.

More recently, newly-elected Governor Gretchen Whitmer established an Office of Climate and Energy.  But as of May 2020, the climate page of the OCE website lists no regulations, policies, or laws for monitoring or limiting methane or CO2 emissions.

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

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

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

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

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

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

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

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

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

Unitization would not be affected.

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

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

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

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

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

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

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

Notes, legal sources, photo credits

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

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

Quoted legal articles:

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

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

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by Ellis Boal


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

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

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

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

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

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

By contrast, for Kentucky this spring EPA approved primacy.

The DEQ drafts

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

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

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

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

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

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

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


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

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

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

EPA’s blast

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

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

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

Fewer staff, increased work, more danger

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

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

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

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

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

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

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

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


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

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

Taxpayers subsidizing the oil-gas industry

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

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

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

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

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

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by Ellis Boal

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

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

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

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

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


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

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

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

DEQ granted the permit on an unknown date.

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

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

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

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

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

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

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

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

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

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

Later that month I chanced on an article about the work of William Harrison of Western Michigan University, an author of 35 technical papers on Michigan geology

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. I decided to email him, outlining the theory of the FOIA case, and the evidence showing D4-11 is probably a gas-oil exploratory well not a mineral well. I invited him to view our video of the drill rig, said I would drop the case if D4-11 proved to be a legitimate mineral well, and asked him to respond.

He did, the next day, very helpfully:

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

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

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

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

(underlining added)

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

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

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

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

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

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

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

He responded the same day:

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

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

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

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

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

Proceedings of the FOIA suit

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

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

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

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

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

The DEQ brief responded:

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

In reply plaintiffs stated:

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

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

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

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

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

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

What should a landowner do?

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

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

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

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

Is there a remedy? Yes.

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

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

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

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

Barry County injection well EPA hearing is April 19

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Download PDF

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

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

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

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

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

Anyone concerned about injection wells in Michigan are welcome to attend and provide comments to the EPA. The hearing is preceded by a public informational meeting

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. Both take place at the Hastings Public Library.

If you cannot attend, please send written comments.

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

Date: Wednesday, April 19, 2017

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

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

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

See the EPA Public Notice here.


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

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

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