Last year, the Idaho Legislature passed House Bill 464 and its many detrimental provisions.  It crippled local governments’ ability to conduct the conditional use permitting process for oil and gas development and imbedded the federal “Halliburton Loophole” for hydraulic fracturing (“fracking”) in Idaho state law, meaning that the practice of fracking does not fall under the definition of injection.  Thus, neither fracked wells nor wells used for the storage of natural gas and oil are considered injection wells and thus are not regulated as Class II injection wells in Idaho.  The state’s new proposed rules strictly concern the storage of toxins that are a by-product of oil and gas development, such as produced water, brine water, the fracking fluid pumped out of a fracked well, etc.

Please read the following articles respectively dated September and June 2012 for a better understanding of injection well issues and risks and the history of their oversight:

Are Fracking Wastewater Wells Poisoning the Ground beneath Our Feet? by Abrahm Lustgarten, Scientific American

The Trillion-Gallon Loophole: Lax Rules for Drillers that Inject Pollutants into the Earth, by Abrahm Lustgarten, ProPublica

Highlights – or Lowlights – of the Proposed Idaho Class II Injection Well Rules

* The rules do not outline or mandate any baseline testing of water wells or underground sources of drinking water (USDW) that exist within the area of review around an injection well.  Likewise, they contain no requirement that USDW be monitored in any way by the operator for contamination.

* The individual bonding requirement for an injection well is $10,000 plus $1 per foot, which is incredibly low considering the documented increase in earthquakes and aquifer contamination by these wells.  Also, the bond is released once the injection well has been plugged and abandoned.  Considering that these are disposal wells intended for permanent storage of toxins, there should also be a permanent bond or insurance policy in place for each well.

* The construction requirements for these wells state that they must be separated from USDW by a zone free of known faults or fractures, defining what is ‘known’ as what is documented in public record.  Much of Idaho’s geology and fault zones have not been researched.  Applicants should be responsible for completing fault zone surveys if none exist within the area of review.

* The construction requirements for a converted Class II well are not as stringent as those for an oil/gas well or for a new well drilled specifically as an injection well.  The rules allow any well drilled in accordance with that well type’s regulations to be converted into an injection well, despite not meeting the casing requirements for new injection wells.  In effect, even water wells drilled to water well standards but ultimately found dry could conceivably be converted into injection wells.

* The state has designated one quarter of a mile as the ridiculously small minimum fixed radius area of review around a Class II injection well.  Class I wells containing many contaminants similar to those used by the oil and gas industry have a fixed radius of 2 miles for some wells.  The equation used to determine the size of the area of review is based on a series of assumptions that are often unrealistic.

* An injection well that does not pass a mechanical integrity test may be allowed to continue accepting injections for up to two years at the discretion of the director.  A failed mechanical integrity test means the well is not sound and is leaking.

* An operator can change the type or quantity of injected fluids listed on the original permit.  Such a ‘minor modification’ bears no requirement to notify the public of these changes.

* Many of the rules are vague and leave definitions, variances, and exemptions up to the discretion of the politically appointed director, not to sound science.

Detailed Comments

010.58  (Definition of Mechanical Integrity) The use of the word “significant” is vague.  What does the state consider to be a significant leak?  This needs to be defined.

040.02.d  (Authorizations, Prohibitions, Exemptions) The rule states that if any water quality monitoring of an underground source of drinking water indicates contamination, the director shall invoke additional requirements.  Yet nowhere in these rules does the state describe a requirement for monitoring drinking water quality near these sites or for conducting baseline testing.  Detailed monitoring and baseline testing should be incorporated into these rules.

040.02.g  This paragraph grants the director the ability to take emergency action in the case of possible contamination of drinking water, yet again, nowhere in the rules is water monitoring laid out as a requirement.

045.02.e.ix  (Application Information Requirements) This section mentions a topographic map that identifies a variety of structures and water sources, but should also include the information listed in 045.05.a.ii that includes faults, for clarity and continuity.

045.02.e.xi  This paragraph states that the requirement to notify all land owners within a quarter mile of a well site could be waived in highly populated areas.  What notification requirement would take its place?

045.04.a  (Bonding of Injection Wells, Individual Bonds) The bond amount is unreasonably low, considering the documented risks and that injection wells are used as permanent storage for toxic waste.  Who would be responsible for contamination that occurs after wells have been plugged and abandoned?

045.05.a.ii  (Information to be Considered by the Director) This information should be copied and pasted under 045.02.e for clarity and continuity.  Also, this paragraph states that the map should show faults if known.  Considering Idaho’s high seismic activity/potential, it would seem appropriate that if no survey of fault zones exists for an area of review, the applicant should complete one.

045.05.a.iv.3  The phrase “appropriate analysis” in this paragraph is vague.  It behooves the state to mandate clear requirements.

045.06.a  (Construction Requirements) The paragraph states the requirement that Class II wells be sited so that they inject into a formation that is separated from any USDW by a fault- and fracture-free zone.  Again, this rule should include the requirement that the area be surveyed if no public record exists.

045.06.c  This paragraph creates an exemption from injection well casing requirements for converted wells that were built to the original standards of the rules for that well type.  Essentially, it states that any type of well can be converted to an injection well.  If a water well was drilled to water well standards and turned out to be a dry well, it could then be converted to an injection well.  This exemption should be removed.  Any well used as an injection well should meet at least the minimum requirements for oil and gas wells, without exceptions.

045.06.c.ii  How would this be demonstrated or proven?

045.06.f  This paragraph refers to log interpretation reports requiring interpretation by the vague descriptor “knowledgeable log analysts.”  The state should outline this requirement in a way that will ensure accurate reports by qualified individuals.

045.07  (Area of Review) Though the state may solicit input from operators on appropriate methods for determining areas of review, it should acknowledge that the operator benefits from smaller such areas and that this input could potentially be biased and inaccurate.

045.07.b  (Fixed Radius) A fixed radius of a quarter mile is inadequate as the zone of endangering influence, based on a number of assumptions.  Duke University determined that the zone of impact for gas and oil wells is one mile, and many Class I injection wells have a fixed radius of two miles.

045.09.a.iii  (Emergency Permits) An operator citing a substantial delay in production of oil or gas resources should not qualify as an emergency.

045.10.a  (Request for Variance) An injection well sited near a USDW should not be exempt from the regular requirements.  How will the state determine whether a well is being drilled above or through a USDW in a remote area where a useable aquifer may exist but is not currently tapped?  The state should prudently require the same standards and best practices for all Class II injection wells.

045.10.b  This variance seems like it would fall under the category of being an unrealistic radius, and the radius should default to the fixed radius, erring on the side of caution.  If the well is being drilled through or above a USDW, the risks are high, and variances should not be granted.

051.01.j.ii  (Permit Conditions, Monitoring, and Records) This paragraph needs to be clarified.  It states that records must be held by the operator for three years and that the director may require that these records be turned over at the end of this period.  It also notes that the operator must keep the records beyond three years, unless they are turned over or permission is granted to discard them.  This paragraph should state that the records must be turned over to the director at the conclusion of the three-year period.  Critical, permanent records describing the composition of injection fluids – the possible future contaminants of USDW – should be kept on file with the state.

051.01.m(2)  (Requirements Prior to Commencing Injection) The director/department should inspect and review all injection wells prior to injection.  The oversight gap created by this paragraph is unacceptable.

051.01.q.iii  (Duty to Maintain Mechanical Integrity) A well that lacks mechanical integrity should not be allowed to operate under any circumstances and certainly not for a period of two years.  If a well fails a mechanical integrity test, it is leaking and posing risks to drinking water.  This exemption should be removed.

057.04.e  (Minor Modifications of Permits) Changing the type or quantity of injected fluids is not a minor modification.  Under this classification, no public notification would be required, although the public has the right to be notified of these changes.

(By Amanda Buchanan)