JCAR and Illinois Fracking: Get the Facts

The Illinois anti-fracking movement has accused the Joint Committee on Administrative Rules (JCAR) of collaborating with industry leaders “behind closed doors” in “smoke-filled rooms” to approve hydraulic fracturing regulations that they deem too favorable to industry. But in reality, JCAR followed its mandate, which is to make sure administrative rules follow the letter of the law.

“The second (IDNR) notice draft clearly created rules that did not follow legislative intent,” Illinois Oil and Gas Association Executive Vice President Brad Richards said Monday. “JCAR members and staff weren’t trying to please one side or the other, they were just doing their job. We think the final rules conform to the law.”

And that law, the Illinois Hydraulic Fracturing Regulatory Act, is considered the most prescriptive, toughest set of fracking regulations in the United States.

But even though the law is tough, the regulations should be workable, allowing Illinois to realize its considerable shale development potential.

That is all industry leaders wanted from the start. They just didn’t think it would take 500 days to get that opportunity.

But with the legislative limbo of the rule-making process now history, shale development can become a reality in Illinois. Here are a few of the key changes from the IDNR’s second draft of rules that should make the law workable.

Public Hearings: Industry leaders felt that the IDNR’s second draft of rules included language that would basically allow anyone — even someone 2,000 miles away — to claim they might be adversely affected by drilling and call for a public hearing. Furthermore, they wouldn’t have to provide any evidence justifying their call for a public hearing. Without a doubt, opponents could take advantage of the language to bog down development with an endless stream of public hearings. The rules now reflect the statute, however, which will limit public input to those directly affected.

IDNR Director’s Authority: IDNR’s second draft of rules gave the director unilateral power to arbitrarily and subjectively reject permit applications. Theoretically, an operator could have met all permit requirements and still be denied a permit by the director. The rules now reflect the statute, essentially saying if the applicant meets the requirements of the permit application, the applicant shall be granted a permit.

Setbacks: The statute provided detailed setback requirements for clarity for landowners and applicants. New language was added by the IDNR in its second draft to give it unrestricted authority to impose additional setbacks based on proximity to certain areas. The final language allows no subjective changes to setbacks defined in the statute.

Decision-Making Criteria: There were eight new specific decision-making criteria added by the IDNR in its second draft of rules, and the language added a “cumulative effects” analysis as well. Industry leaders felt the criteria and “cumulative effects” analysis of “past, present and future development” added subjective, cumbersome analysis that would prove extremely costly and inefficient. They also felt the criteria were very vague and difficult to define. That said, permits conceivably could have been rejected for not having enough information. Those eight decision-making criteria were eliminated from the final rules, however.

The final rules also scale back additional regulations on radioactive contamination that were extensively addressed in the first draft of rules. And, language that would have made flaring virtually impossible has been eliminated.

Fringe environmental groups have perpetuated the myth that industry got everything it wanted in the final rules. But other environmental groups have admitted that they had a handful of victories.

“It is important to bear in mind that the final draft is still significantly better overall than DNR’s extraordinarily problematic initial draft. A good number of DNR’s positive changes made in the August draft are still in there, over industry’s objection.” — Natural Resources Defense Council attorney Ann Alexander

Technical language that will keep non-water fracking regulated under the IHFRA remains from the second draft of rules, and the seven-day limit on use of emergency pits for flowblack waste was upheld as well. The presumption of liability on operators was also restored.

The latter examples demonstrate that JCAR took into consideration concerns from both sides of the issue, as did the IDNR during the public commenting period.

“All sides — including environmental advocates — weighed in and submitted public comments with respect to both the first rulemaking and second rulemaking that JCAR took into consideration when making their final determination,” Mark Denzler, Vice President and Chief Operating Officer of the Illinois Manufacturers’ Association said.

Environmentalists clearly expected more — if not everything — on their wish list. But JCAR’s job is to make sure the rules follow the letter of the law, not expand on it.


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