Last month, the Joint Committee on Administrative, Executive and Legislative Review, which reviews state regulations, held a hearing to consider proposed regulations on hydraulic fracturing ("fracking"). As a committee member, I reviewed the document submitted by the Maryland Department of Environment (MDE) and listened to the testimony presented.
Environment Secretary Benjamin Grumbles referred to the proposed regulations as the "platinum standard" compared to other states. But these regulations are wholly inadequate and, if anything, speak to the lax standards elsewhere. As is often said, the devil is in the details. Here are some of the details that should be of concern to all Marylanders.
MDE is charged with oversight of fracking operations. But these regulations hand over control of the process to fracking companies. This happens in a variety of ways. While fracking companies are required to provide a Comprehensive Development Plan (CDP) and allow for public participation, that process is flawed. CDPs would not need approval by MDE, and MDE could not require changes. While public meetings are required, there are no rules about how the public would be notified. Moreover, there is no requirement that a fracking applicant pay attention to the concerns presented. Even if 100 percent of Marylanders opposed fracking, the applicant could hold a public meeting, disregard all information that was presented and proceed unimpeded with its plan.
The proposed penalties for violations of regulations are meaningless. At "$10,000 per day for each day of the offense, up to total of $50,000," the fine amount will not bother any fracking operator. For these companies, $50,000 is a budgetary rounding error — hardly a deterrent — and will be seen as a cost of doing business.
The sections titled "Estimate of Economic Impact" are full of false assumptions and the rosiest of predictions. The regulations anticipate "positive economic impacts to real estate professionals and tourism related businesses," but there is no analysis of potential problems. Any spill or toxic leakage, no matter how minor, could destroy the tourism industry of western Maryland overnight. This failure to account for any negative impact of fracking continues throughout the document.
There is no evidence that MDE has studied the possibility of earthquake events or its impact on everything from fracking safety to tourism. According to the U.S. Geological Survey, "Within the central and eastern United States, the number of earthquakes has increased dramatically over the past few years" in part because "wastewater injection can raise pressure levels more than enhanced oil recovery, and thus increases the likelihood of induced earthquakes."
Safety and setbacks in the proposed regulations are inadequate. For example, explosive blasting can take place "within 500 feet of any occupied dwelling, commercial building, school, church, or hospital." There is no definition of how 500 feet will be measured from the blasting site to the listed properties. Explosive blasting at such close range would undoubtedly be disruptive.
Pollution issues are not adequately addressed. The fracking process uses millions, if not billions, of gallons of water. The regulations note that to the extent "practicable … 90% of the flowback and produced water be recycled." This is vague, non-binding, and does not specify what happens to the 10 percent of water not recycled. There is no statement as to the source of water used for fracking or what that impact would be to public water systems, wells, rivers and lakes.
There is no information about what happens to the tons of chemicals pumped underground where they will be subjected to extremes of pressure and temperature. Entirely new compounds may be formed over time and be far more harmful than the original constituents. A Duke University study found that the spread could include radioactive chemicals as well. Studies show that due to underground water channels, pollutants can appear years later in remote locations.
There is no effective requirement for inspections — unannounced or otherwise — to be sure that operators are in compliance, and the fees to be collected are inadequate to recruit and train inspectors qualified to review fracking operations. Due to budget cuts, MDE already has a reduced number of inspectors.
There is no mechanism allowed for health professionals to share information unless it involves treating a specific patient. This means that new clinical facts about specific chemicals cannot be shared at a medical meeting or conference. Risks to emergency fire and rescue first-responders are not considered in any manner. There is no provision for the Maryland Poison Control Center to be involved, the key resource for citizens and providers to get information about toxic exposures.
There are no provisions to assess air quality, even though there were in earlier proposals. The proposed regulations are equally silent on how the gas and oil obtained will be transported. Will hundreds of miles of pipelines need to built, and if so, where and who will pay for this?
Stating that, "The operator shall reduce noise to the lowest practicable level" is non-specific and non-binding. An operator could have dozens of trucks rumbling through neighborhoods at all hours and claim that this is the "lowest practicable level" possible.
There is no provision for financial liability. Many of the adverse consequences of fracking to the environment, agriculture, and human health are not immediately recognizable. The onset of medical conditions, especially for children, often takes years to manifest. Under these regulations, an operator is not required to post any bond or have any financial liability over time. Thus, a fracking operator could operate for two years, leave Maryland, and then not be held responsible for any problems that would ensue later. This is contradictory to other sections of Maryland law that allow for subsequent discovery of a wrongdoing.
If these are the best recommendations that can be developed, then it's evident that no regulatory scheme can adequately address the risks of fracking. That's why an extended moratorium or permanent ban is essential.