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NC fracking rules may not all pass muster

North Carolina’s fracking regulations may not all pass muster in their final review this month before the proposed safety rules are forwarded to the state legislature for approval by Jan. 1, a deadline set by state law.

A staff recommendation issued Wednesday to the N.C. Rules Review Commission said three of the 124 rules require more public hearings and should be rejected by the rules panel at this time.

If the rules panel agrees with its staff, the N.C. Mining and Energy Commission, which wrote the rules, would work on revising the three problematic rules while the other 121 rules move ahead to the legislature for review.

The Mining and Energy Commission will discuss how to proceed when it meets Friday. The commission can try to convince the rules panel that its staff recommendation is mistaken and the three rules in question should be approved when the rules commissioners meet Dec. 17. Or the Mining and Energy Commission can hold the trio of rules back for several months, said MEC Chairman Vikram Rao.

Either way, Rao assured, the bulk of the fracking rules will get to the legislature in time.

“So we meet our deadline — there’s no doubt about that,” Rao said. “These are all relatively small things.”

North Carolina’s fracking moratorium can’t be lifted until the rules go into effect, which is expected to take place as early as this spring, clearing the way for the issuance of drilling permits. The rules cover a gamut of issues, including drilling permits, chemical disclosure, buffer zones, water testing, well shaft standards and others related to horizontal drilling and hydraulic fracturing.

Related: NCDOT wants fracking companies to repair damaged roads

The Rules Review Commission is the last stop before North Carolina’s proposed regulations go to the legislature. The commission’s narrow legal task is limited: Rules have to be authorized by state law; they have to be clear and necessary; and the agency that wrote them has to follow proper legal protocol.

In her analysis of the proposed 124 regulations, rules panel staff attorney Amanda Reeder found several problems. Two of the rules should be rejected because they “are almost a vebatim repetition of the law” and therefore unnecessary, Reeder said by email.

Three rules didn’t follow protocol because they did not go through public hearings. That’s because the Mining and Energy Commission rewrote the rules after public hearings in August and September, and the changes were “substantial,” Reeder said. A rule that has a substantial change requires 60 days of public notice, with public comment, before it can be resubmitted for review.

In one substantial change, Reeder said the Mining and Energy Commission extended the time allowed for the N.C. Department of Environment and Natural Resources to review a fracking permit application from 60 days to 180 days.

In another substantial change, water storage pits would be required to have leak monitoring and alarm technology, with monthly checks of leak detection systems.

A third substantial change requires the use of gas/fluid diverter systems to prevent well blowouts.

Even if the Mining and Energy Commission were to remove the changes and revert to the original language, the rules panel couldn’t review them in December because they haven’t been submitted for review in their original form.

Reeder said the only way these three rules could make the legislature’s Jan. 1 deadline would be for the Rules Review Commission to issue a waiver.


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