It’s that time of year again in Colorado. I’m not talking about the holiday season. I’m talking about the rulemaking process. I’ve known for months this was coming so I’ve been saving up my blogging strength. You’d think this would be an exciting time for a wonk like me. Lots of blog fodder. But every year I dread it.
Rulemaking. Stephen Colbert should do a “The Word” send-up of it. For one thing it’s not even a word. And they don’t actually make rules. It’s more like a process whereby the state and the oil & gas industry avoid making rules at all costs – even at the cost of public health and the environment.
Here’s my take on the rulemaking process. A lot of very brave, very ordinary citizens travel a long way during the busiest time of the year to bring gut-wrenching testimony about their years of exposure to oil and gas drilling that involves illnesses and hardships to a panel of mildly bored and totally defensive commissioners. For which the industry rewards these citizens by calling them attention-seeking-activists-fracktivists-with-an-extremist-agenda. In the end they shuffle the deck but the rules don’t change much. The ones that do change lack enforcement provisions.
Yes, it’s that time of year when our high-flying optimism about the progress we’ve made in raising global awareness of the dangers of drilling and fracking gets a total smackdown from the oil & gas industry, in collusion with the state.
It’s more like a demoralizing process.
This time around the rulemaking process is all about the impacts of oil & gas drilling on air quality. Usually the COGCC is in charge of the rulemaking process regarding the oil & gas industry. However air quality is a public health issue so the CDPHE’s Air Quality Control Commission (CAQCC) is tasked with the responsibility. The CAQCC is a nine-member panel appointed by Governor Hickenlooper (four commissioners’ terms expire in January).
To say the CAQCC has moved forward timidly at a snail’s pace would be an exaggeration. They have barely moved at all.
To begin with, the CAQCC never wanted the task. It was foisted upon them when the U.S. EPA declared nine Front Range counties in violation of federal limits on ground-level ozone in 2012. Those counties include Adams, Arapahoe, Boulder, Broomfield, Denver, Douglas, Jefferson, Larimer, and Weld.
Federal rules limit ozone concentrations to no more than 0.075 parts per million over an eight-hour period. To violate, the three-year average of the annual fourth highest eight-hour ozone concentration has to exceed 0.075 at a monitoring site. Four monitors along the Front Range have three-year averages higher than 0.080 parts per million. And it’s only getting worse.
As a result, the EPA imposed a 2015 deadline for Colorado to clean up the air. The CAQCC had no choice but to act – albeit slowly (government employees hate it when the government tells them what to do). Ozone concentrations along the Front Range would have to be maintained at unprecedented lows for the next two years in order for the region to meet the 2015 clean up deadline. In the past, the Colorado Air Pollution Control Division (CAPCD) has placed the blame for Front Range ozone violations squarely on vehicular and power plant emissions, enforcing heavy regulations for decades. Yet they have all but ignored the impacts of oil & gas production on air quality.
But that was then. This is now. A report earlier this year from the Colorado Department of Public Health and Environment (CDPHE) found that nearly half of all emissions of VOCs (volatile organic compounds) in the state can be attributed to the oil and gas industry.
Pipelines, tanks, and other storage facilities constantly produce VOC emissions. When those VOCs mix it up with other chemicals such as NOx (nitrogen oxides) and that combination is exposed to heat and sunlight they form ozone, which causes a variety of adverse health impacts, including respiratory problems such as lung inflammation and asthma, immune disorders, and can even lead to premature death. Ozone affects infants, children, the elderly, those with chronic lung disorders, diabetes, and heart disease, and those who exercise outdoors. In other words, ozone pollution affects EVERYONE!
The Front Range is not alone in this mess. In Garfield County, the state estimates that oil and gas development accounts for more than 87% of all human-caused VOC emissions The industry is also responsible for 72.5% of the human-caused NOx emissions here. Benzene, a known carcinogen, is another air pollutant emitted during oil and gas production. The state estimates that oil and gas sources emit 67% of the benzene emissions in Garfield County– NOT vehicular exhaust emissions like the industry has claimed for years and years.
In that respect the tide has turned. The CDPHE can no longer weasel out of its responsibility for public health and safety regarding oil & gas impacts. Hearings for proposed new air quality regulations have been tentatively set for February 2014. However four commissioners’ terms will be expiring and the CAPCD Deputy Director Garry Kaufman acknowledges that the Front Range is probably not going to meet the EPA standards by the end of 2015 saying, “We haven’t achieved compliance. It’s going to be some years of work.”
Something tells me we can expect more delays.
The formal draft rules are expected to be released in November, perhaps as early as next week. In the meantime, a loose draft of the proposed rules was recently released to stakeholders and the verdict is in. The Governor’s proposal stinks worse than Colorado’s air.
Here are the highlights — read ’em and weep
… The new regulations (Gov. John) Hickenlooper’s team is recommending will continue to allow significant amounts of methane to escape into Coloradoan’s air,” Progress Now’s Joe Boven stated in a news release this week. “A recent study found that air pollution is a stronger environmental cause of cancer than second-hand smoke, yet while eliminating smoking from public facilities has gained momentum, this proposal would reduce many regulations for oil and gas emissions.”
Weld Air and Water members wrote they were “bitterly disappointed” at the proposed language in the rules.
“This proposal fails to solve any of our state’s pressing air quality problems,” said Matt Sura, an attorney who is representing communities in the rule-making process, in a news release. “These regulations do nothing to address the threat of toxic emissions of oil and gas facilities that are near homes. The proposed regulations will also be ineffective at bringing down dangerous levels of smog and ozone on the Front Range, and do little to reduce methane emissions that contribute to climate change” …
… “The draft rule is a huge disappointment,” said Matt Sura, an attorney representing the group Weld Air and Water, who did speak on the record about the administration’s proposal.
“I think that Gov. Hickenlooper believes that he has to appear to have done something. His administration has put forth a proposal that doesn’t do much of anything.”
Hickenlooper has often spoken publicly about having a “zero tolerance” for emissions of methane, a potent greenhouse gas that has 34 times the impact of carbon dioxide on climate change.
But his administration’s draft rule addresses “volatile organic compounds” including methane, but not methane specifically.
One environmental lobbyists calls methane capturing “the key to whether the natural gas equation works for climate”, but laments that Hickenlooper’s proposed rule is “not even close” to achieving his stated zero tolerance goals.
“Compressor engines can be emitting as much methane stream as they want without being tracked by this rule,” Sura said.
The proposed rule calls for using auto-igniters to burn off toxic emissions; and linking new wells to pipelines within six months to minimize leakage of methane.
But environmentalists want the rules to go much further when it comes to leak detection and repair, or “L-DAR”, as it’s known in industry-speak, which they believe must be done on a monthly basis to make a meaningful impact on air quality.
Under the proposed rule, 90 percent of the state’s well sites would be inspected just twice a year.
At the last meeting of the Air Quality Control Commission earlier this month, Will Allison, director of the state’s Air Pollution Control Division, which includes the AQCC, told FOX31 Denver that it’s a difficult balance, given the industry’s concerns about the financial cost of being forced to do more routine monitoring, especially with several companies owning hundreds of wells.
“We’re trying to find that sweet spot that allows us to reduce emissions to the degree we want while still being cost-effective strategy,” Allison said …
Sura laughs off the idea that the industry — Noble Energy, for instance, expects to invest $10 billion in Colorado over the next five years to triple its production — can’t afford more frequent inspections.
“Sometimes it’s just as easy as replacing a seal on a hatch, on a condensate tank,” Sura said. “These fixes are very cheap for them in most cases and save them a tremendous amount of money because they’re keeping these gases and this oil in the pipeline.”
The draft rule would also force leaks, when detected, to be repaired within 15 to 30 days; environmentalists believe that’s too lenient — and the industry thinks it’s too strict.
The rule also proposes to relax thresholds for reporting air pollution and requiring permits. Currently, well sites emitting more than five tons of VOCs must apply for permits; the state is now proposing to lift the threshold so that only sites emitting 25 tons of VOCs are forced to seek permits.
“It’s actually a step backwards in some respects,” Sura said. “That’s unacceptable; we need to have that information so we can track those pollution sources” …
… “What the governor has said doesn’t match at all what the administration is putting forth as a new rule,” Sura said. “At this point, his calls for ‘zero tolerance’ for methane emissions are empty rhetoric.”
Governor Hickenlooper is proud of the rulemaking process and fond of saying to anyone who will listen to him (and lately those numbers are dwindling) that Colorado has the strictest oil and gas safety and environmental regulations in the country. Yet, according to the Center for Western Priorities: “Just about every day in Colorado, there’s a chemical spill caused by drilling and fracking. And once a week on average, a spill contaminates groundwater.”
When it comes to protecting our waterways and groundwater the state is doing an exceptionally lousy job. Why should we expect anything better when it comes to our air quality? One of the many lessons we learned from the Parachute Creek spill this year was that spills also affect air quality. Part of the remediation process involves forcing benzene and other BTEXs out of the groundwater and into the air — or air sparging, which produced stinky, low-hanging, blue-gray clouds.
DENVER — Governor John Hickenlooper is seeking to reassure environmentalists, medical groups, small businesses and residents disappointed and angered by what they call weak draft regulations written by the governor’s Air Quality Commission and meant to address the state’s spiking ozone levels.
“These rules are still pending,” said Hickenlooper’s communications director Eric Brown. “The Governor has encouraged a robust stakeholder outreach process and a strong science-based approach in developing new rules… The administration’s goal is for Colorado to have regulations that are a national model in protecting public health and the environment.”
The governor’s assurances mostly elicited skepticism. Many of the disappointed stakeholders fear the best chance to strengthen the rules has already passed.
Frank Swain, energy advocate at Conservation Colorado, said that the draft versions of the rules needed to be strong.
“These rules will be the foundation for the final rules,” he said. “Of course the commission has the jurisdiction to strengthen them significantly.”
One particular area that citizen/environmental groups would like to see strengthened significantly is residential drilling. They are requesting the state to adopt a separate air quality standard for drilling in residential zones saying: “The AQCC rule-making should include a set of more stringent regulations for facilities located within a ¼ mile of a home or school to address localized air quality threats.”
They have drafted these proposed standards:
- All sites capable of emitting 1 ton of VOCs / year should employ control devices capable of controlling 98% of emissions from all VOC source points. These facilities must install sensors to detect fluctuations in pressure or a malfunction in the control device (e.g., loss of flame in an incinerator / flare) and use telemetry to give the operator immediate notification of an upset condition.
- Response and repair should be required within eight hours. Current proposals being discussed at the APCD to require response in 15-30 days is absolutely unacceptable.
- Inspections for fugitive emissions, using a forward-looking infrared (FLIR) camera, should occur at least once a month to detect any fugitive emissions.
- Since electricity is available near residential areas, the following should be mandatory:
a. No-bleed pneumatic devices (electric actuators or instrument air)
b. Any compressor engines should be required to be electric
- Silica dust must be completely contained during the hydraulic fracturing process.
Though the clock is ticking, there is still time for Coloradans to write to Governor HIckenlooper and ask for rules that require the best available technology combined with best management practices, and are as strong as possible to protect public health and the environment. Go to Colorado Can’t Hold Its Breath