Prepared by Grady McCallie, NC Conservation Network, grady@ncconservationnetwork.org

November 18, 2014

On Friday, November 14, the NC Mining & Energy Commission adopted a final package of fracking rules. Between July and September, over 30,000 commenters – individuals, agencies, corporations – submitted over 200,000 comments on the 120+ draft fracking rules. The final rules package incorporates some changes in response to comments, but rejects or ignores most of the concerns expressed by the public.

As a result, the rules package remains incomplete and unable to protect North Carolinians from the harms of fracking. These harms are neither abstract nor hypothetical. As noted below, they have received media coverage in states with ongoing natural gas extraction through fracking.

• Preemption of local ordinances. The package and state statutes preempt local ordinances that interfere with fracking, even if the ordinances are essential to protect health, safety, property values, or quality of life. In states that preempt local ordinances, communities suffer not just from fracking wells, but from the maze of related infrastructure. (Al Jazeera, Nov. 4)
• Inadequate oversight. The rules rely largely on self-inspection and self-reporting of violations; that doesn’t work.(ProPublica, February 2013)
• Inadequate bonding. The final rules do not provide for impact fees to offset damage and costs to local governments, and do not require bonding to cover damage to neighbors’ properties, worker safety, or legacy pollution. The final rules do not require testing of soil and groundwater before bonds are released, making it possible for contamination to slide by undetected.
• Toxic air emissions. The rules package does not address air emissions, a documented cause of health problems near fracking operations. The Commission says it will eventually act on a petition to address toxic air emissions, but does not say how. As it stands, the rules leave communities vulnerable. (Associated Press, Oct. 21; US News, Oct. 30; Grist, Nov. 3)
• Methane emissions. Public comments pointed out the worrying contribution of methane leakage from wells and surface infrastructure to the atmosphere, where methane acts as an extremely potent climate-forcing gas. The final rule package requires operators to have a plan to detect and ‘address’ methane emissions, but it does not say what that means, or require their elimination. (Denver Post, May 8)
• Failure to ban frack fluid pits. Open pits off-gas toxics, and can overflow, causing soil, groundwater, and water contamination. The final rules improve standards for pits, but do not prohibit them, as many commenters recommended. (Inside Climate, Oct. 10). Off-gassing also occurs from modular tanks with open tops, and the rules do not address this either.
• Inadequate protection for groundwater. The final rules would increase setbacks from surface drinking water impoundments and rivers – this is good – but do not increase setbacks sufficiently to protect nearby groundwater wells from surface spills. In other states, these spills are associated with contamination of nearby groundwater. (Denver Post, Dec. 2012)
• Inadequate protection for surface waters. Numerous public comments pointed out that North Carolina lacks water quality standards needed to set discharge limits for many of the contaminants found in fracking wastewater. The final rules do not fix this, but instead look to the US Environmental Protection Agency (EPA) to someday address this gap in protections – though no EPA rule is in the works for the kind of centralized treatment facilities to which waste in North Carolina would be sent. (Natural Resources Defense Council, 2012)
• Lethal threats to workers. In recent years, a number of workers have died from asphyxiation when checking fluid levels in tanks. Federal and state occupational safety programs are hopelessly underfunded and will not protect workers. Simple design standards could make equipment used in North Carolina much safer, but the final rule package does not require design to avert unnecessary worker deaths. (Energy & Environment News, Oct. 27)
• Earthquakes. Although commenters raised concerned about earthquakes resulting from fracking – especially in the vicinity of the Shearon Harris nuclear power plant – the Hearing Officers’ Report simply ignores those concerns, speaking only of seismicity related to disposal of fracking wastes through injection wells, which is illegal in North Carolina. But fracking-caused earthquakes are a real concern as well, unaddressed in the final rules. (Star-Telegram, Nov. 3)

In the comment period, North Carolinians spoke clearly; an overwhelming share of comments opposed to fracking in the state, as well as calling for much stronger rules. The unresolved flaws of the rules package should offer a warning sign to state leaders: fracking is not right for North Carolina. It is time for the NC General Assembly to take a step back – to disapprove these rules and freeze the process where it stands.

For more information, please contact: Grady McCallie, grady@ncconservationnetwork.org, 919-857-4699 x101.