Will Fracking Restrictions Hold Up at Enforcement Time?

Dec 1, 2013

Illinois' fracking regulations were regarded as some of the strongest in the nation when they were approved in the spring, but opponents worry that they will be weakened when put into practice.

Protesters seeking a moratorium on fracking in Illinois stationed themselves outside the governor’s office.
Credit Jamey Dunn / WUIS/Illinois Issues

  Hydraulic fracturing, also known as fracking, is a process used to extract oil and natural gas by pumping water, chemicals and sand into the ground. The water fractures a source rock, allowing gas or oil to escape and be collected. Sand is used to hold the cracks in the rock open. Chemicals are added to the water for a variety of reasons, such as disinfection, lubrication and making the water thicker to keep the sand from sinking. Fracking has been practiced on oil wells in Illinois for decades, but a new interest has grown around the potential for extracting natural gas in southern Illinois. Such fracking projects would be on a much larger scale than anything Illinois has seen to date. Horizontal fracking wells can extend as much as a mile and use millions of gallons of water. 

The primary controversy over fracking has been issues of water pollution. In Dimock, Pa., residents near fracking sites say their water has been contaminated and has made them sick. Preliminary tests by the U.S.  Environmental Protection Agency did find chemicals in residents’ drinking water but did not find any at levels unsafe for human consumption after the water is treated. Residents in other states near fracking sites have had similar complaints, but the EPA has yet to produce a conclusive link between fracking and toxic water pollution. Pennsylvania officials say that some methane released during the drilling of fracking wells did migrate to private water wells near Dimock. Methane is not toxic, but it does present a safety hazard because it is highly combustible. Multiple studies conducted by local governments have also found elevated levels of air pollution near fracking wells. The EPA is currently undertaking a national study of fracking scheduled to be released next year. 

“I live in southern Illinois. I drink the water in southern Illinois. My children drink the water in southern Illinois. My neighbors drink the water in southern Illinois,” says Marion Democratic state Rep. John Bradley, who sponsored Illinois’ fracking law. “Our first and foremost presumption, effort, intent in everything we did in every negotiation we had, was first and foremost, we’re going to protect the ground water in southern Illinois. Secondly, if we can do that, we are going to give this industry an opportunity to develop in a responsible matter and create jobs and economic development in the area.”

The new law sets standards for the cement casings that are put into wells to prevent leakage of fracking fluid. It requires water testing before and after hydraulic fracturing wells are constructed, requires disclosure of chemicals used in the process and sets standards for the disposal of water used for fracking. It prohibits hydraulic fracturing near certain sensitive sites and water sources, including schools, churches and health care facilities. If fracking chemicals are found in water, it would be assumed that it was the fracking well operator’s fault, and the operator would be required to prove otherwise. The law also sets fees for permits at $13,500 per well. The measure would set the tax on oil or natural gas extracted from fracking wells at 3 percent for the first two years of the life of a well and then on a sliding scale based on production. The Illinois Department of Natural Resources, which will oversee the fracking permitting process, plans to hire up to 53 new employees with the influx of fees and establish a new section specifically for oil and gas extraction. 

Business leaders say fracking will bring jobs and economic growth to some of the most depressed areas of the state. “This is a monumental achievement for economic development and jobs in Illinois.  Hydraulic fracturing will create good-paying jobs and reduce our reliance on foreign source of oil,” Mark Denzler, vice president and chief operating officer of the Illinois Manufacturers’ Association and a co-founder of the GROW-IL Coalition, a pro-fracking business group, said when Gov. Pat Quinn signed the regulations into law. 

Quinn, who has long counted himself an advocate for water protection, called for fracking regulations in his budget address early in 2013. “This new law will unlock the potential for thousands of jobs in southern Illinois and ensure that our environment is protected,” he said in a prepared statement issued when he signed the bill. “As I said in my budget address, hydraulic fracturing is coming to Illinois with the strongest environmental regulations in the nation. It’s about jobs, and it’s about ensuring that our natural resources are protected for future generations. I applaud the many environmental advocates and representatives from government, labor and industry who worked with us to make Illinois a national model for transparency, environmental safety and economic development.”

Environmental groups who were involved in talks over the legislation before it passed say they would prefer a ban on fracking but say it is coming to the state on a large scale, and it needs to be regulated. “The environmental community is not endorsing high-volume horizontal hydraulic fracturing, nor are we encouraging it in the state. This legislation does not open the gates for fracking to come into Illinois; the gates are already open. This new controversial technology is already permitted and may already be in use,” Jennifer Walling, executive director of the Illinois Environmental Council, said while the law was being debated in the legislature. “These protections are important, but they do not mean that we are confident that fracking can be done safely. Our support for these safeguards does not represent an endorsement of fracking. However, we believe that operators are seeking permits for fracking today, and it is essential for the legislature to pass tough restrictions ... to protect our communities.”

But some community groups were outraged that environmental organizations participated in the negotiations. “The idea that the bill is written on so-called best practices in other states — well, that hasn’t exactly worked in other states,” says Liz Patula, coordinator of Southern Illinoisans Against Fracturing Our Environment (SAFE). 

Those same groups are now concerned that the law is being watered down as IDNR works to draft the rules that drillers will have to abide by. The IDNR has released a draft copy of its proposed rules for fracking and is currently accepting public comments. 

“The so-called ‘toughest regulations in the nation’ have been gutted by rules without any teeth. The trivial sanctions in the rules means there’s a very good chance Illinois will become an ‘anything goes’ state for the oil and gas industry,” says Bill Rau, a professor emeritus at Illinois State University and a spokesperson for Illinois People’s Action. 

For instance, the law requires fracking companies to store used fracking fluid in closed tanks and only use open pits to store the water in emergency situations, but it does not specify the size of storage tanks. Rau and others argue that the rules will make it easy for drillers to store water in pits under the guise of an emergency by installing tanks that are too small to hold all the fluid. 

They also say the penalties for violations are not strict enough. Large fracking companies have chalked up plenty of fines and legal settlements in other states. Chesapeake Energy is the largest natural gas driller in Pennsylvania. It was also slapped with the largest fine an oil and gas company has ever received in the state. Environmental regulators fined the company more than $1 million for local drinking water contamination and a fire that injured three workers at a well site. 

Chesapeake has faced court cases as well. The company paid a $1.6 million settlement to three families in Wyalusing, Pa., after faulty cement drilling-well casings allowed methane to escape and migrate to the residents’ wells. This year, the company agreed to pay $7.5 million as part of a class action lawsuit brought by landowners who say the company was undercutting the royalties it was supposed to pay them. 

Opponents to fracking say they are frustrated that the state is only holding two hearings on the first draft of the rules. One was conducted in Chicago in November, and another was scheduled for December 3 at Rend Lake College in Ina. However, IDNR is complying with the state’s rulemaking process. Department officials say they will have the staff and, with the new law in place, the additional oversight needed to ensure that high-volume horizontal hydraulic fracturing comes to the state in a safe way. “This new set of regulations gives us the needed authority and resources to protect the environment and manage this method of energy extraction,” IDNR Director Marc Miller said in a prepared statement. 

IDNR is taking public comment on its draft rules through January 3. Written comments can be submitted by mail or at IDNR’s website. 

Illinois Issues, December 2013