Rule It Out!

Testimony on PA DEP Regulations
RE: Chapter 78a Regulations for Unconventional Wells
April 29, 2015
Washington and Jefferson College Public Hearing
Washington, PA

J. Stephen Cleghorn, PhD
221 East Union Street, Apt 1
Punxsutawney, PA 15767


Good evening, I have formal testimony I am submitting on paper, but let me just hit the highlights of those recommendations for purposes of this hearing.

My first point is a process one.
It concerns the fact that many hundreds of people and dozens of organizations have been working statewide to demand tighter regulations than those that are currently proposed by DEP. My testimony includes those recommendations as they were written by others, in addition to my own original comments. I hope that they will not be discounted as a result. I have read that DEP will judge what it believes to be form letters and aggregate the recommendations contained therein as if they were recommended only once.

I hope that is not true. Many of us work on this part-time and as volunteers, so we rely upon our environmental nonprofits to cull through the regulations that DEP makes so very difficult to read in the first place, and then to focus in on the ones we want many voices to support because we have seen the harm done by current practices that too leniently regulated.

If 1,000 of us tell you 1,000 times to ban open waste impoundments, then count that as 1,000 recommendations even if we all say it the same way.

The irony is that DEP – practicing what some have called “egg-slice permitting” – will disaggregate the toxic emissions coming from 8 or 10 gas compressor stations that, because of their proximity to one another, are emitting within a small geographic area more dangerous gases like Nitrous Oxide than are generated out of 2-3 large steel mills with smokestacks. Yet DEP refuses to count these as a “single source” of pollution so they can escape EPA toxic emissions oversight.

So if you will do that for the industry, please return to the people in these hearings the courtesy of counting us each as separate people with separate comments.

So, that said, here are MY recommendations (priorities).

Number 1: Close immediately all open air frack pits and impoundments, NOW! Not within three years from when these regulations go into effect. We have been waiting 10 years for this ugly groundwater and air-polluting hazard to end. Why do we have to wait three more years?! Why does the industry get more time? Dr. Michel Boufadel at University of Pennyslvania has shown how leaking impoundments can leave a 200-year legacy of groundwater pollution. News reports have said that DEP does not even know how many such impoundments exist or where they are. Simple rule – CLOSE THEM ALL, NOW, and don’t bury them either.

Standards for frack pits and impoundments (Sections 78.56, 78.57, 78.58, and 78.59).
Mounting violations and the potential for water and air pollution have already led some companies to transition away from pits and standardize the use of closed loop systems for the storage and treatment of waste. Issues with frack pits have led to contaminated water and resulted in the largest state fines ever against a driller in Pennsylvania, both over $4 million, to Range Resources and XTO for water contamination due to leaking. DEP should amend the final regulations to:

Prohibit operators from using any open-air pits and tanks, regardless of size or location, for storage and treatment of regulated wastes, including wastewater, drill cuttings, and substances (like gels and cement) that return to the surface after fracking. The new revisions prohibit the use of production pits at shale gas well sites, an important change that should be supported. But the use of huge impoundments to service multiple wells would still be allowed. Waste should be stored and treated only in closed, aboveground systems.

Require all waste impoundments to be properly closed immediately upon the effective date of the regulations. The revisions give operators 3 years to either properly close their existing impoundments or bring them under compliance with the construction requirements in residual waste permits. This is an improvement but still puts nearby residents and the environment at risk.

Require that tanks used for the storage of waste be completely enclosed. The revisions give operators the option of using tanks “without lids” to store waste on well sites—making it more likely that polluting spills and emissions will occur.

Existing pits which contain fracking wastes, including wastewater, drill cuttings, and any other substances that returns to the surface after fracking may not be buried on-site (no “toxic teabags”).

NUMBER 2: Protect the Children. DEP should require, at minimum, a one-mile setback of oil and gas wells, waste storage facilities, and any other infrastructure from the property boundary of any school property.

Definition of public resource (Section 78.15, 78.57, 78a.15, 78.57a)
DEP has added schools to the list of public resources that require additional consideration when permitting oil and gas wells and longer setbacks of waste storage from school buildings, parks, and playgrounds. This is a positive step, but is not sufficiently protective. While there is no scientifically established “safe setback” beyond which there aren’t health risks from oil and gas development, the distances in the regulations (200 feet and 300 yards) are far too little to offer even limited protection.

To improve protection from pollution, noise, and light and safety from traffic, accidents, and explosions, DEP should require, at minimum, a one-mile setback of oil and gas wells, waste storage facilities, and any other infrastructure from the property boundary of any school property. This setback should also be applied to locations where other vulnerable populations reside, including nursing homes, hospitals, day care centers, and communities at a disproportionate risk of health impacts (such as those living in environmental justice areas where exiting pollution is already too high and people do not have the means to move away).

NUMBER 3: Not only make drillers responsible for identifying abandoned gas and oil wells before they drill, but plug them up if needed before drilling. This industry has gone along for too many years passing on its messes to be cleaned up at the cost of the public. If they want to drill, tidy up the site beforehand, at their cost. They can afford it better than the public treasury can.

Identify orphaned and abandoned gas and oil wells (Section 78.52a.)
Operators of unconventional wells are required to identify the location of old wells before drilling new ones, an important change that should be supported. An estimated 200,000 abandoned wells exist statewide. As drilling spreads and intensifies, so does the chance of accidents, blowouts, and pollution from the intersection of new wells with old ones. DEP should expand these changes and require operators to:

Identify existing wells through onsite inspection before site and well construction and drilling so that the location of a new well can be changed if needed.

Plug and seal or otherwise appropriately address abandoned and orphaned wells according to state safety standards prior to new well site construction. The state lacks funding to address the large number of old wells, so drillers should be responsible for preventing water and air pollution when accidents occur.

NUMBER 4: The Huge Waste Issue. This industry has no plan for getting rid of the 1.3 barrels of toxic waste they generate for every foot of each well bore they drill. (Call me if you want documentation on that number.) Some treatment plants not able to handle the waste still receive it because they were “grandfathered in.” Well, grandpa is dead, probably from drinking polluted water, and we must have no more flowback water going into our rivers, period. And disposal wells in the middle of communities that depend on well water are no solution, either. If EPA does not ban those, DEP should.

All waste returned to the surface must be monitored, inspected and documented weekly. Treatment and or transport to an approved waste disposal site must be documented with a paper trail.

DEP must prohibit the use of wastewater (brine) from both conventional and unconventional wells as a de-icer or dust suppressant. The practice has not been proven safe and the cumulative effects are unknown.

NUMBER 5: Transparency and access to information. DEP needs to make sure all electronic filings and reports from operators are posted to the public the same day they are completed. And DEP needs to release all data from any studies it does of radioactivity in drilling waste (fluid and solid), water and air tests, and so forth. The raw data needs to be available to outside reviewers with expertise to analyze it.

DEP proposes to require oil and gas operators to file permit applications and required reports electronically. This change would improve data, efficiency, and enforcement and should be supported. That’s good

DEP should also make sure that all electronic filings and reports made by operators are also available to the public on DEP’s website on the same day they are deemed complete by DEP. Easy and timely access to information by the public is necessary to ensure agency transparency and operator accountability.

LASTLY, a few words about the broader context on these hearings on regulations, because I, like many others here, am uncomfortable being here to suggest improved mitigation strategies that suggest that this highly complex, still experimental, deeply damaging, impossible to regulate, hubris-infused, climate- and public health-destroying industry can be made to operate in a responsible way. Here is how one person once put it, and your Secretary Quigley will recognize these words because they are his from the days you led the Department of Conservation and Natural Resources. You once said:

“The cumulative impacts of Marcellus development will dwarf all the impacts on Pennsylvania of timbering and oil and coal combined. I am afraid for the future of this state. It is hanging in the balance.”

If this is still a true statement in the estimation of the DEP Secretary, and if all these new and improved regulations will not prevent this future for Pennsylvania, then this is a futile effort tonight. I would suggest that we need a ban on this dangerous practice, not improved regulations.

The only safe regulation of this industry is to RULE IT OUT!

About jstephencleghorn

My name is Dr. J. Stephen Cleghorn. I am now a resident of Baltimore, MD. I continue to own a 50-acre certified organic farm in Jefferson County, PA that I operated with my late wife Lucinda between 2005 and 2011 when she passed away from cancer. The farm is now under lease to organic farmers and protected by "The Dr. Lucinda Hart-Gonzalez Conservation Easement” which protects it for organic agriculture and against the threats of industrial development that would violate the Rights of Nature. The blog’s name is taken from the writings of Saint Augustine who believed “Hope” to be the greatest of spiritual gifts. And, says Saint Augustine, Hope has two lovely daughters: Anger and Courage. Anger so that what must not be may not be; courage so that what should be can be. Anger and Courage. Now in late 2016, after the election of Donald Trump as President of the United States, these are the spiritual gifts that must come to the fore if we are to have “Hope” for a loving culture and a sustainable world for future generations. When I first created this blog it was focused on the extreme form of fossil fuel extraction known as “fracking” that was threatening much of the state of Pennsylvania and many other parts of the United States. At the root of that struggle was and is a struggle to halt and reverse climate change. Now the struggle has turned to resisting an incoming Trump Administration that is an existential threat to the climate with its plans to ramp up extraction and use of fossil fuels. This blog will be about having the courage to stand up to the massive global corporations that would ruin our planet and its climate, take their profits and leave the mess to future generations of to clean up. We need to rise up, my friends, and be not afraid.
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