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Fracking Regulators Deny Legal Request for Air Pollution Rules


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Commissioners at the N.C. Mining and Energy Commission said they don’t have the legal power to institute new air rules, but agreed to study the issues surrounding drilling’s air pollution.

By Gabe Rivin

State drilling regulators on Friday rejected a legal petition from environmentalists who sought new rules to minimize the air pollution released by natural gas wells, which may soon dot North Carolina’s map.

Members of the N.C. Mining and Energy Commission concluded that they don’t have legal authority to develop air pollution rules. The Blue Ridge Environmental Defense League filed a legal petition in August requesting that the commission develop these rules.

Amy Pickle, the vice chairwoman of the MEC, found that the commission doesn't have the legal authority to develop air rules. Photo courtesy Duke University

Amy Pickle, vice chairwoman of the MEC, found that the commission doesn’t have the legal authority to develop air rules. Photo courtesy Duke University

“We have to have statutory authority to promulgate any rule that we write, including rules that we are petitioned to write,” said Amy Pickle, vice chairwoman of the MEC and the director of the state policy program at Duke University’s Nicholas Institute for Environmental Policy Solutions. “[The air rules] are not rules that we have the authority to change.”

Pickle had previously chaired a committee that reviewed BREDL’s request. At a hearing on the petition in October, the committee discussed the potential shortcomings of the state’s current rules.

But despite the concerns raised by Pickle and others, the committee ultimately recommended that the MEC reject the petition. Their reasoning was steeped in a close reading of state law. SB 820, a 2012 law, established the MEC and set the state on course to issue drilling permits. Before issuing permits though the MEC must finish writing a large bundle of rules, a task it is required by a newer law to complete by January.

Despite the breadth of their work, the MEC is not tasked by SB 820 to develop air rules. Instead, the N.C. Environmental Management Commission bears both the authority and responsibility to develop those rules.

This means the MEC does not have the power to carry out BREDL’s request, Pickle’s committee found.

The MEC voted unanimously at Friday’s meeting to agree with this legal interpretation.

New regulations

BREDL’s petition requested that the MEC amend the state’s rules to list gas drilling as a source of air pollution.

This, they said, would require future drillers to secure air permits. And these permits would limit drillers’ abilities to pollute the air.

Their cause for concern is significant, if recent academic studies are any indication. Researchers have found that drilling can release harmful pollutants into air near drilling sites. Those pollutants include benzene, a volatile organic compound that’s known to cause leukemia. Gas drilling elsewhere has caused spikes in ground-level ozone, which can cause respiratory problems even at low levels, according to the U.S. Environmental Protection Agency.

But the Environmental Management Commission chose to not develop any new rules for drilling’s air pollution.

A natural gas well. Drilling can release numerous harmful pollutants, including benzene, a known carcinogen. Photo courtesy U.S. Bureau of Labor Statistics

A natural gas well. Drilling can release numerous harmful pollutants, including benzene, a known carcinogen. Photo courtesy U.S. Bureau of Labor Statistics

The EMC opted instead to rely solely on federal rules. But environmentalists say those rules are limited at best, and could offer large loopholes for future drillers.

According to Lou Zeller, BREDL’s executive director, BREDL initially tried to spur the EMC to action. In a letter last September, the group laid out its request for new air rules.

Zeller said the EMC failed to respond, which is why the group petitioned the Mining and Energy Commission instead.

Environmentalists aren’t the only constituency that expressed frustration over the state’s inaction. Residents in Lee County, a potential hotspot for drilling, have grown frustrated too, according to Matt Matthews, a commissioner with the MEC.

“What we see is the feds seem to be dragging their feet; the state seems to be dragging its feet,” Matthews said.

A study committee

Pickle on Friday reiterated her concerns about potential loopholes in state and federal rules. She also acknowledged that the MEC has not yet issued recommendations to the EMC about air rules, a requirement under SB 820.

Pickle recommended that the MEC establish a permanent committee to study air rules. The committee would look at potential loopholes in federal rules and technologies used to capture air pollution, in addition to related issues.

The MEC adopted this recommendation as well, and agreed to begin this work quickly.

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3 Comments

  1. Morning Post for Dec. 9, 2014Dec 9, 2014 at 8:08 am

    […] • Fracking commission rejects request for air pollution rules: The panel denied a petition from environmental advocates seeking new rules to minimize air pollution, concluding that they don’t have the legal authority to institute the regulations. Read more. […]

  2. keelyDec 9, 2014 at 10:51 am

    The MEC might not be able to change or add a rule, but how about a strongly worded recommendation not written by the pals at API, to both EMC and to the General assembly, and even to the EPA. The rush to frack NC is evident everyday. How many of the current and past MEC member are going over to McCorys off shore drilling panel.

  3. Environmental Must-Reads – December 9, 2014 | Stuart H. SmithDec 9, 2014 at 2:08 pm

    […] Fracking Regulators Deny Legal Request for Air Pollution Rules […]

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