UPDATE: NOVEMBER 15, 2013
Today the Illinois Department of Natural Resources released its draft rules based upon the fracking law passed in June. Unfortunately, the draft rules undermine many of the critical protections contained in the state law. It is critical that the Illinois public attend public hearings and contact the Department of Natural Resources to request that the rules be amended to reflect the protections outlined in state law.
Please visit www.tinyurl.com/ILfracking to learn more and to submit a comment on proposed rules to the Illinois Department of Natural Resources.
On June 17, 2013, Gov. Quinn signed The Illinois Hydraulic Fracturing Regulatory Act into law. The regulatory standard was the result of extensive negotiations among industry groups, an environmental coalition, state legislators and state agencies including the Department of Natural Resources, IEPA and the Illinois Attorney General. It is one of the most stringent laws on hydraulic fracturing (“fracking”) in the nation and contains extensive provisions to protect water quality, assure transparency, and promote public involvement.
The Strongest Protections Against Water Pollution in the Nation
The Act includes numerous precedent-setting provisions designed to protect against water pollution. Collectively, the Act’s provisions amount to the strongest protections against fracking-related water pollution in the country. They include:
- Prohibition on open-air ponds for wastewater storage. The Act takes groundbreaking steps to minimize the risk of water pollution by requiring closed tanks for wastewater storage except temporarily in unforeseeable circumstances.
- Strong waste fluid management requirements. The Act provides additional strong protections against water pollution by requiring that: (a) wastewater be reused in fracking or injected deep underground, (b) wastewater be tested for dangerous chemicals and (c) wells be shut down if fracking fluid is released outside of the shale rock formation being fractured.
- Comprehensive water monitoring requirements. The Act ensures that water pollution is quickly and easily identified by requiring both baseline and periodic post-fracking testing of surface water and groundwater sources near fracking wells.
- Presumption of liability for water pollution. The Act places the onus on fracking companies to prove that contamination of water sources near the well site was not caused by fracking. Very few states have this important and powerful provision.
- Setbacks from water sources. The Act’s setbacks for water sources are among the strongest in the nation and mandate the largest setback of any state from public water supply intakes.
- Well construction standards. The Act protects against contamination by requiring numerous best engineering practices for well construction, casements and maintenance.
Transparency and Public Participation
The Act ensures that the public will have access to a great deal of information about fracking, including what chemicals are used, how much water is used, the source of the water, and detailed descriptions of fracking operations. The Act also makes certain that the public will have the opportunity to engage in the oversight of fracking operations. Examples include:
- The strongest chemical disclosure provisions in the nation. The chemical disclosure provisions include comprehensive disclosure requirements for both before and after fracking occurs. This includes the creation of master lists of the base fluids, additives and chemicals that may be used in fracking, which are to be posted on the Illinois Department of Natural Resource’s website.
- Trade Secrets. The Act allows companies to request trade secret protection of any of the chemical information otherwise required to be disclosed. However, it also includes important provisions to ensure that only qualified trade secrets are protected, that the public can challenge trade secret designations, and that health needs trump companies’ right to protect chemical information.
- Water Use. Fracking permit applicants must submit a water management plan describing the source of water to be used for fracking, the location where that water will be withdrawn, the anticipated volume and rate of each water withdrawal and the months when withdrawals will take place. After fracking, companies must report to DNR the total water used in fracking and the locations from which the water was withdrawn.
- Public notice and comment. Notice of the permit application is published twice in a local newspaper and sent directly to owners of property near the proposed well site. Each permit application will be made available for public comment for 30 days. If a hearing is held on the permit, DNR may extend the comment period for an additional 15 days.
- Public hearing and appeal. Anyone who may be adversely affected by the permit may request a public hearing. Public hearings will be “contested case” hearings, allowing for parties to present evidence and cross-examine witnesses. Final permit decisions are subject to judicial review.
- Citizen suits. The Act provides that, in addition to the Attorney General and the State’s Attorney of the county in which fracking is taking place, any adversely affected persons – including environmental groups – may sue (a) fracking companies for violations of the Act, and (b) the Department for failure to perform its duties under the Act.
Other Key Provisions
- Water management and wildlife protection. In the Water Management Plan portion of fracking permit applications, applicants must describe methods they will used to minimize water withdrawals and adverse impact to aquatic life from those withdrawals.
- Air quality. The Act exceeds federal air requirements for oil and gas fracking in two ways: (1) it applies to both oil and gas wells, while the federal rule applies only to gas wells, and (2) it applies during both the initial fracking process (called “well completions”) and later in the production phase, whereas the federal rule only covers the initial fracking process. Fracking companies are required to capture natural gas and put that gas to beneficial use (direct it into a pipeline or use it for onsite energy generation, among others) unless they demonstrate that it would be technically infeasible or economically unreasonable to do so. In that case, they must flare the gas, destroying most of the harmful air pollution in the process.
- Earthquake Prevention. Under the Act, if a noticeable earthquake occurs which can be traced to the deep underground wells where fracking waste is injected, DNR will adopt rules to monitor seismic impacts and limit injection activity.
- Enforcement. The Act grants DNR broad authority to administer and enforce the Act, including authority to inspect fracking sites, collect data, require testing or sampling, examine records and logs, hold hearings, adopt rules, and take other actions as may be necessary to enforce the Act.
For additional information, contact:
- Environmental Law & Policy Center: Jenny Cassel, email@example.com, 312-795-3726
- Faith in Place: Brian Sauder, firstname.lastname@example.org, 217-649-1898
- Natural Resources Defense Council: Ann Alexander, email@example.com, 312-651-7905