It’s About Fracking Time …. Illinois Department of Natural Resources Releases Revised Proposed Fracking Rules

It has been over a year since Illinois took the first step towards regulated high-volume hydraulic fracking by passing the Illinois Hydraulic Fracturing Regulatory Act225 ILCS 732/1-1 et seq.  Under the Act, high-volume, horizontal hydraulic fracturing operations require a permit.  But a permit could not be obtained until the Illinois Department of Natural Resources published the administrative rules that will govern fracking.  Recently, the IDNR released amended proposed rules for final approval by the Joint Committee on Administrative Rules, which has until November 15 to approve the rules.  If the agency fails to meet this deadline, the rule-making process will have to start over.

The Act became effective in June 2013.  In November 2013, the IDNR proposed the first draft of the administrative rules that will regulate fracking.  The comment period on the proposed rules closed in January 2014.  The IDNR received over 30,000 comments on the proposed rules and, on August 29, 2014, released amended rules.  After the final rules are published, permit applications may be submitted.  Depending on how long it takes the IDNR to publish final rules, and how long the permit process takes, high-volume, horizontal hydraulic fracturing operations likely will not begin until 2015.  Because the permit process may result in “contested case hearings” that are subject to judicial review, 2015 may prove to be overly optimistic.

The Act was negotiated for more than two years among industry and environmental groups and state legislators and regulators.  It may well be one of the strictest fracking laws in the country.  Of course, there are those who believe it goes too far and will act as a deterrent to development of the Illinois Basin’s New Albany Shale formation.  And naturally, there are those who say it does not go far enough to protect the environment and local communities.  Whether the fracking law achieves the desired balance between natural resource development and environmental protection is yet to be seen.

Summary of The Fracking Law:  The Act only applies to horizontal fracking that uses more than 80,000 gallons of fluid per stage, or more than 300,000 gallons total.  The proposed rules describe how to measure non-liquids, such as foam or gels, as “fluids” so that high-volume nonwater-based fracking operations are also regulated.  The permit process will require disclosure of each chemical anticipated to be used in the hydraulic fracturing fluid.  Trade secrets can be protected, though, which may limit the public disclosures.  Healthcare workers treating patients must have 24-hour access to the list of chemicals used.  The permit application will have to show that safeguards are in place to protect the groundwater from contamination.  Importantly, the public will have an opportunity to comment on the permit application and any person having an interest that is or may be adversely affected may request a public hearing.

Summary of The Permit Process:  The permitting process begins by registering with the IDNR.  The required forms are available at the IDNR website.  The registration forms must be submitted thirty days before the registrant’s first high-volume horizontal hydraulic fracturing permit application.  The permit application will require disclosure of at least 19 categories of information, plus any other information the IDNR may require.  The proposed rules require 30 categories of information, such as the Well Site Setback Plan, Directional Drilling Plan, Underground Fresh Water Information, High Volume Horizontal Hydraulic Fracturing Operations Plan, Chemical Disclosure Report, Water Source Management Plan, Hydraulic Fracturing Fluids and Flowback Plan, Plugging and Restoration Plan, Water Quality Monitoring Work Plan, and Public Notice Drafts.  Each part of the permit application could potentially be a basis for comment, recommendation, or objection.

The public will receive notice of the permit application by way of publication in the local newspaper, and owners of property near the proposed well site will receive direct notice, as well.  Permit applications will be open for public comment for at least thirty days.  Anyone who may be adversely affected by the permit may request a public hearing during the public comment period.  The public hearings will be a contested case hearing before a Hearing Officer.  That means the parties are allowed to present evidence and cross-examine witnesses.  The IDNR’s final decision on the permit application will be subject to judicial review.

Given the short time allowed for objecting, those who intend to object should be proactive and prepare objections, with support for the objections, as early as possible.  Likewise, applicants should be ready and able to defend the application at the time of filing.

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Kerri Forsythe

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