The officials writing the state’s fracking rules slogged through pages of legal language Thursday as they begin to review stricter safety standards that were urged by more than 200,000 comments from the public.
The line-by-line review by the N.C. Mining and Energy Commission will be the board’s last say on the safety standards before an almost certain approval that will lift North Carolina’s fracking moratorium sometime next year, clearing the way for shale gas exploration to get under way.
The Mining and Energy Commission will continue its review Friday, but given the scale of the project, it is not likely to approve the 124 rules until Nov. 14 at the earliest, or possibly Nov. 17. After that, the safety rules, which took the commission two years to write, advance to the N.C. Rules Review Commission in December and then to the state legislature in January.
Despite the sheer volume of public comments, the Mining and Energy Commission is considering fewer than a dozen significant changes. That lopsided ratio prompted environmental activist Therese Vick to accuse the commissioners of being too deferential to the American Petroleum Institute, the powerful oil and gas lobby.
“When the API says the standards are too high, you lower them,” Vick told the commissioners during her allotted 3-minute comment period. “When the public says the standards are too low, you punt.”
The commissioners are walking a fine legal line, because if any rule revisions are deemed to be substantive, that would cause a delay in legalizing fracking in North Carolina. A substantive rule change would have to go through another round of public hearings, delaying the delivery of the rules package to state lawmakers.
The decision on whether the rules are substantive will be up to the Mining and Energy Commission and also the Rules Review Commission.
One of the revisions the commission is considering would change the proposed rules to allow unannounced inspections of drill sites. Another would allow state officials to issue a “stop work” order against suspected violators during enforcement actions.
The commission is also considering increasing the safety buffer between drilling operations and water sources that feed municipal drinking water. The setback had been proposed at 650 feet, but commissioners will consider extending it to 1,500 feet.
About 2,400 of the comments urged the commission to ban the storage of fracking fluids, which contain industrial chemicals, in outdoor open pits. Such concerns arose after an industrial accident in February in which a Duke Energy coal ash pit breached and spilled 39,000 tons of sludge and slurry into the Dan River.
Several commissioners expressed agreement with the public’s sentiment that above-ground tanks are safer than in-ground pits, but other commissioners warned that this rule would be too complicated to change at this late stage. Instead, they advised allowing open pits for now and revisiting the issue next year.
Commissioner Amy Pickle warned that open-air pits have a history of leakage, overflowing and failure. Pickle directs the State Policy Program at Duke University’s Nicholas Institute for Environmental Policy Solutions.
Commissioner Jane Lewis-Raymond, a corporate executive in the natural gas industry, urged making the change now and assured her fellow commissioners that the oil-and-gas industry wouldn’t complain about it. Lewis-Raymond is senior vice president and chief legal, compliance and external relations officer at Charlotte-based Piedmont Natural Gas, the state’s largest natural gas utility company
“Any company that wants to be a leader in stewardship in this field, that’s how they’re operating,” Lewis-Raymond said. “Most of them will do it and brag about it in their sustainability reports.”
The mountain of public comments on the proposed rules included concerns that the commission didn’t establish a safety buffer between drilling operations and Duke Energy’s Harris nuclear plant in southwestern Wake County.
Commission Ken Taylor, who is North Carolina’s state geologist, said the Duke Energy property surrounding the nuclear plant is off-limits to development and industrial activity. “It’s a non-issue,” Taylor said.