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Petition Hearing Reveals Gaps in Drilling Air Rules

October 22, 2014 by Editor in Environmental Health, Featured

Even as the starting point nears for drillers to start exploring for natural gas via hydraulic fracturing, many of the rules to insure adequate pollution controls are not in place.

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By Gabe Rivin

As North Carolina inches closer to a homegrown natural gas industry, the state faces multiple uncertainties in preparing to manage a potentially significant new source of air pollution.

Those uncertainties were on display last Friday, when the Blue Ridge Environmental Defense League presented a legal petition that seeks several updates to the state’s air pollution rules. Blue Ridge’s staff, citing a growing body of health research that raises concerns about drilling, called on the N.C. Mining and Energy Commission to list gas drilling as a regulated source of air pollution.

MEC commissioners met to hear Blue Ridge Environmental Defense League's petition. Photo by Gabe Rivin

MEC commissioners met to hear Blue Ridge Environmental Defense League’s petition. Photo credit: Gabe Rivin

This step, they said, would force drillers to receive air permits, guaranteeing that their air pollution would be regulated by the state. The petition also requests that drillers be forced to monitor air pollution along the borders of their properties.

Natural gas drilling can be a large source of air pollution. Gas wells and drilling equipment can emit compounds that are acutely hazardous and carcinogenic, and researchers have tied drilling to spikes in ground-level ozone, which can cause respiratory problems.

MEC commissioners are set to finalize their bundle of drilling rules by January, a requirement before the state can begin to issue drilling permits. And although the Friday meeting was organized to hear Blue Ridge’s petition, the committee of three MEC commissioners also addressed the state’s readiness to regulate drilling’s air pollution.

Commissioners heard from top officials at the N.C. Department of Environment and Natural Resources, including Mike Abraczinskas, the deputy director of DENR’s Division of Air Quality.

According to Abraczinskas, the state has a strong system in place to regulate drilling’s pollution.

“We feel that our existing regulatory framework is a robust one and covers the air emission sources from the shale gas process,” he said. Abraczinskas said that the state will rely on rules from the U.S. Environmental Protection Agency, and that most other states have not developed air rules for oil and gas wells.

“All of those factors have led to our recommendation to not develop any new rules or change any existing rules at this time,” he said.

A lengthy back and forth

Abraczinskas gave a similar presentation last November to the Environmental Management Commission and didn’t face any questions from commissioners, according to the meeting’s minutes.

But that was far from the case at Friday’s meeting. For about 45 minutes, Abraczinskas stood at the podium and answered MEC commissioners’ probing questions, the majority of which came from MEC vice chairwoman Amy Pickle, who also directs the state policy program at Duke University’s Nicholas Institute for Environmental Policy Solutions.

Some of the exchanges revealed potentially significant gaps in the state’s plans to regulate drilling pollution.

Abraczinskas, for example, noted that under EPA’s rules, some wells could face looser requirements to reduce pollution. Those wells include so-called wildcats, used to explore an unproven gas field, and delineation wells, which are used to survey the boundaries of the gas field. Both are allowed to burn off excess gas instead of capturing it, a process that researchers say releases hazardous pollutants into the air.

Martha Girolami, an anti-fracking activist, addresses concerns about drilling's pollution. Photo by Gabe Rivin

Martha Girolami, an anti-fracking activist, addresses concerns about drilling’s pollution. Photo credit: Gabe Rivin

Pickle questioned how DENR would determine a well’s status.

“Does the Division of Air Quality keep an eye on a well and determine whether or not it’s a wildcat or delineation well?” she said.

Abraczinskas responded with a note of uncertainty. “Certainly, we haven’t established the specific compliance routine as of yet,” he said.

That uncertainty extended into other areas of discussion, in which Pickle asked how different regulations would apply to the various phases of drilling and production. “I’m trying to work my way through the maze,” she said. “What is applying and when in time?”

Pickle pressed Abraczinskas to address several sources of air pollution at gas wells, including open pits, which are used to store waste fluids, and the wellbore, the hole drilled into the ground.

“I don’t quite understand your perspective on wellbore emissions and open pits or open tanks,” she said.

Abraczinskas said the answer was still uncertain at DENR. “It’s still an area that we want to get more information on,” he said.

Enforcing the law without pollution permits?

Lou Zeller, Blue Ridge’s executive director, said that if the MEC doesn’t adopt the proposed changes, drillers will not be covered under current air pollution regulations. That means drillers also won’t have to get air pollution permits, he said, which the state uses to monitor pollution and enforce its laws.

As an example of what can happen when the state doesn’t require air pollution permits, Zeller cited a galvanizing plant in Graham. According to Zeller, the plant has been polluting the air for years with immunity since DENR does not require it to have a permit.

But Abraczinskas disagreed with Zeller’s reading of air pollution rules. He said that numerous sources of pollution are covered under air rules, even if they don’t have a permit.

“They still have to comply with those air-quality rules,” he said.

Abraczinskas also questioned whether Blue Ridge’s petition would substantially change state rules. The state’s list of air pollution sources, to which the petition would add oil and gas wells, includes what Abraczinskas called a “catch-all,” or language that accounts for pollution sources that are not explicitly listed, such as oil and gas wells.

In an email interview, Abraczinskas added that his division expects drillers will have to receive permits once they’ve begun producing gas from the ground.

However, he said the division doesn’t expect to issue air permits during the “construction/development phase of this activity.” This pre-production phase includes the initial drilling into the ground, the construction of a well and the hydraulic fracturing of subsurface shale. These steps produce potentially large amounts of air pollution from diesel-powered trucks and other engines.

Abraczinskas said that air pollution during these phases only lasts for “a matter of weeks,” and that other state environment agencies also don’t require air permits for this phase.

Silence at the Environmental Management Commission

The MEC, which has been working steadily since September 2012, has nearly completed its large set of drilling rules. The rules govern wastewater and the distance between wells and homes, among numerous technical rules.

Despite the breadth of its work, the MEC did not draft rules to address air pollution. The legal responsibility for that falls on another state commission, the Environmental Management Commission. But that commission opted to not develop any new, state-specific rules after hearing a presentation from Abraczinskas last November.

That inaction is at the heart of Blue Ridge’s petition, which the group filed in August.

SB 820, the 2012 bill setting the state on a path toward drilling, required the Environmental Management Commission to develop rules after receiving recommendations from the Mining and Energy Commission.

But Blue Ridge says that the MEC never did make those recommendations. Vik Rao, chairman of the MEC, did not confirm or deny this allegation, but said in an email that the MEC would address the allegation in its response to the petition.

And despite their pleas, the Environmental Management Commission has only responded with silence to Blue Ridge’s requests for action, Zeller said.

By petitioning the MEC though, the environmental group could encounter a significant legal obstacle to its request. Under SB 820, only the EMC, not the MEC, has the legal power to institute new air rules. The MEC could turn down the petition, arguing that it does not have the legal power to implement the requests.

Zeller said that he and his staff were aware of the potential problem, but that they decided to petition the MEC after the EMC failed to respond to the group’s first request for regulations, which was included in a letter last September.

“In a nutshell, the silence was deafening,” he said.

The three MEC members who led the hearing will now deliberate among themselves. In mid-November, they’ll decide upon a recommendation to the full commission, which will make a final decision on the petition.

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