Michigan Fracking: Regulate or Ban?

Ellis Boal is an attorney in Charlevoix, Michigan, and a leading activist in the ban fracking movement. He specializes in labor and employment law, representing employees, union members, and unions.
View more information about Ellis Boal.

Transcript: (Recorded 3.29.13)

Ellis: I’m Ellis Boal. I’m an attorney. I live in Charlevoix, Michigan in the northwest Lower Peninsula. And I got interested in the fracking issue last 2010, when I got a letter from the DNR saying that mineral rights under my land might be auctioned off. So that got my attention fairly quickly. I went to a meeting. I found other people who were interested in the fracking issue. I realized how serious it was, not just in Michigan, but in many other states and around the world. I’m an attorney. I’m a labor attorney, historically, but since I moved to Northern Michigan, at the millennium, I’ve turned my attention towards environmental issues. And I now have a couple of cases in the Michigan Court of Appeals, and I’m very active in a petitioning campaign and in providing information to the public. Our organization is banmichiganfracking.org and letsbanfracking.org. The director is my wife, my dear wife, LuAnne Kozma, who I married last summer.

energy-101.org: People in general, I think, we’re going to assume a basic knowledge of it. But from you, what are the hot-button points that are your concerns about fracking?

Ellis: Different people have different hot buttons or which is the primary button for them. For many people the primary button is water quality and water contamination. For me, the primary hot button is global warming and the escape of natural gas, most of which is methane, into the atmosphere, which is a much more powerful greenhouse gas than carbon dioxide. There are also issues involving earthquakes from associated injection wells. There’s the issue of secret chemicals, which are used by the frack companies in doing the fracking process, whether those chemicals should be made public or not.

energy-101.org: We all know that we have things like the EPA, the Environmental Protection Agency. We have the Department of Environmental Quality. Certainly they must be watching and monitoring this situation.

Ellis: The answer to that… I mean there are several answers, but I’ll just give you the one that I am most familiar with, because it involves a litigation that I have in the Michigan Court of Appeals right now. There’s a rule that Michigan has (it’s been on the books for 10 or 15 years) that any well, which is an injection well, the chemicals that are going to be put… And an injection well means a disposal well or storage well or something where you’re putting stuff into the ground, rather than taking it out of the ground. And there are rules that say, if you’re going to have an injection well, you have to have it permitted. And you have to do a chemical analysis of everything you’re putting into the injection well and provide it to the DEQ before they start drilling, not… much less fracking, but even before they start drilling.

And then if you live nearby to the injection well, then you know what’s going into the ground 100 yards or 500 yards from where your own water well is, and you can do baseline testing on your own well. And if you already know what to test for, it’s going to be cheaper and easier to do that testing. But Michigan does not apply the rules for injection wells onto frack wells. Why would they not do that? If you’re injecting millions of gallons, hundreds of thousands of gallons, that should be considered an injection well and therefore these rules should apply, which require disclosure of the chemicals before they start drilling.

But the DEQ won’t do it. I asked them why before I started the lawsuit and then continued the lawsuit. They said, “Well, we don’t think technically under our rules that a frack well is an injection well.”

So I went to a meeting of the American Petroleum Institute in Acme Township last April. And the speaker there was a guy named David Miller, who’s the top expert on fracking in the United States. And API standards are quoted frequently in the Michigan Regulations. And this is in a meeting with 100 people there, all in the industry. And they allowed me into the meeting, even though they knew I was a protester. And they allowed me to ask a question. I said, “Is a frack well…” This is a quote now, “…used to inject fluids for the purpose of increasing the ultimate recovery of hydrocarbons?” He said, yes. He didn’t hesitate. Well, that’s the definition, the Michigan technical definition, of an injection well. And I showed that to the DEQ. Well, they had one of their people there listening. And I said “Ok. And now a frack well is an injection well. Therefore you should apply these rules, and therefore owners who live nearby can do baseline testing and test… ” And they said, “No. We’re just not going to do it.”

So why can’t the DEQ be trusted? They won’t do the obvious things that are going to protect people. These are not technical words; these are ordinary English words. Courts and Agencies are supposed to apply ordinary English words according to common understandings, not according to some technical understanding that you and I don’t know. And so if a well is used to inject fluids for the purpose of increasing ultimate recovery hydrocarbons, then it should be treated as an injection well. There is an exception for that in federal law called a “Halliburton Loophole”. You may have heard about that. Your listeners might have heard about that. But this Halliburton Loophole doesn’t apply in Michigan. Michigan has its own rules.

energy-101.org: We know there’s water used in fracking. That’s generally understood. But can you give us some idea of the dimensions or the quantities of water that are involved?

Ellis: Yes. I’ve done a little figuring getting ready for this interview. Encana has put out projections for the number of wells in the northern Lower Peninsula raging between 500 and 1700 well locations. The average amount of water usage traditionally given by regulators in industry is 5 million gallons of water per well. But we’ve seen a proposal by Encana just recently of 31 million gallons for each of 3 wells. So one way to look at it is to consider the range between the high and the low. If you multiply 500 wells times 5 million gallons, that comes up to a total of 2.5 billion gallons of water, Michigan water, that will be used just by Encana for the wells it is planning over the next several years. That’s the low end, 2.5 billion. The high end, if we multiply 1700 well locations by 31 million gallons per well, that comes out to 52 billion gallons of water. Whether the average turns out to be closer to 2 billion or 52 billion gallons of water, total usage by Encana over the next several years, it’s still a huge number and should not be allowed in Michigan’s time of drought and low-lake levels.

energy-101.org: One way or another, they’re using billions of gallons of water. They must be paying for the water then.

Ellis: Well, when Encana applies for a permit, part of the permit application is to say how many wells they’re going to drill to get the water. And these wells we’re talking about right now are in Kalkaska County along Sunset Trail in the Au Sable State Forest. And they tell the DEQ, “We’re going to have 3 water wells for this 1 frack well,” or, “4 water wells for this one frack well”. They say how deep they’re going to drill it. Typically I’ve been seeing 151 feet is the depth of the aquifer. And there’s no charge for that water in the permit when it’s granted.

energy-101.org: In addition to water consumption, what are some of the other issues that you would connect to the fracking system?

Ellis: Well, one of the issues is the chemicals that are used as part of the fracking process. A well is first drilled. And then the drill rig is taken away and different equipment comes in, and then it is fracked. And frack is short for fracture. And the fracturing process comes after the drilling process. And when a well is fractured, they use mostly water. They use a fair amount of sand. And it cannot be just any sand. It has to be a certain type of sand, mined from certain areas of the country. And then they add certain chemicals. Typically 5, 6, 7 different chemicals might be used, but those 5 or 6 chemicals might be chosen out of a universe of 600 chemicals. And many of those chemicals are toxic. Diesel fuel is one that’s been used frequently. BTEX has been used. And this one particular chemical (I have a sheet here, what’s called a material safety data sheet), this is a chemical used in Encana wells. This is from Superior Well Services. And this particular chemical is called acid inhibitor 2, or AI-2. And in the material safety data sheet, they list 4 ingredients. And the 4th one says, “Chemical name proprietary component. CAS number (which is a number assigned any type of material or chemical) XXX.” They’re not telling you. They’re saying “It’s a secret, and we’re not going to tell you what it is.”

Now, this AI-2 is particularly interesting because it is particularly lethal. It is described elsewhere in this data sheet that it may cause flash fire or explosion. It may be fatal if inhaled. It is fatal if swallowed. Containers of it that you think are empty, may not really be empty. And if you pressurize, cut, weld, or braze or heat it, it can explode and cause injury or death. So watch out for it, because this is one of the frack chemicals that is in wells that we know of in Kalkaska County on Sunset Trail in the Au Sauble State Forest and ultimately onto the roads of Cheboygan County and Kalkaska County; 40,000 gallons of it went there.

Now, we have not analyzed that frack fluid that went onto the roads to see if this AI-2 is actually part of it. The DEQ says that it has analyzed, but how are they going to analyze for a chemical that they don’t know what it is? It’s a proprietary component. They say, “Well, we know most of the components that are used. And we test it for those that we know of.” But they haven’t tested it for this proprietary component because they don’t know what it is. They say… The DEQ says, “It was a mistake. We should not have allowed that 40,000 gallons to go on the roads and in the private campground. And when we realized it was a mistake, we put a stop to it. And then we went out and tested samples, and we analyzed those samples, and we found out there was nothing unsafe in them.” That’s what they say.

We’re taking a look at those tests ourselves. We don’t have conclusive results yet. One of the tests was for radium 226 and 228. There are suggestions, from what we’ve heard so far, that there are dangerous amounts of radium, but I can’t authenticate that yet.

energy-101.org: There could be 2 approaches if we wanted to do a ballot initiative. One could be to regulate it. And one could be to ban it. Why is it that you’ve gone toward the banning direction?

Ellis: Well, one reason is in the lawsuit I just mentioned, is that they won’t follow their own rules about disclosing chemicals in advance for the benefit of nearby land owners. Another example is fragmentation of the forest through pipelines. These 500 or 1700 Encana wells throughout Northern Lower Michigan, throughout the state forests, are going to fragment the forest. There’s no regulation that can protect against that. They’re putting pipelines in Kirtland Warbler areas. I have 2 clients who are fighting this who have Kirtland’s warblers in their backyards. And there’s pipelines going right within half a mile of their yards. They weren’t even notified. And Encana went to the Public Service Commission and got permission for this, and there was no public notice of that. We had to intervene, and now we’re going to get the attention of the Public Service Commission, and we’re going to bring to its attention that this is not just 1 well. This is 500 or 1700 wells throughout the area. They have to consider the cumulative impact. The easier way to do it is to just stop it in its tracks from the beginning. Once people understand the problem with these wells and how it’s a threat to Pure Michigan, how it’s a threat to farmers and tourists and wineries, etc., we can stop it. We have hundreds of people in place ready to start petitioning so we can do it. And we are doing it.

energy-101.org: Why don’t you tell us the essence of the ballot proposal we have. What does it say?

Ellis: The language is on our website, letsbanfracking.org. And in essence, what it says, it’s very short and readable. You can read it in 2 minutes and understand it, unlike some of the other ballot proposals you may have seen over the last year. It does 3 things.

Number 1, it would ban horizontal fracking, not vertical fracking of the type that’s been done for decades in Michigan, but horizontal. And by horizontal we mean substantially horizontal. That’s the wording. So if a horizontal bore varies by a degree or so from true level, it’s still considered horizontal.

Secondly, it would ban storage of frack waste in the state, whether the waste was produced in the state or out of state, just all frack waste, again, horizontal frack waste.

And the third thing it would do… And by the way, the state of Vermont has banned fracking. The state of New York has had a moratorium for several years. The countries of France and Bulgaria have had bans. Anyway, the third thing that this would do is to change the state’s official policy that’s been in effect since the 1930’s that requires environmental regulators, the DEQ, Department of Environmental Quality, it’s called, requires them to foster the industry. That’s a quote, “Foster the industry,” and to maximize production of gas and oil. I was just startled when I read that. You’ve heard of special-interest legislation or special-interests being involved in, you know, whispering in the ear of the governor or legislators or the President of the United States. And everybody’s against special‑interests having any control over things. We live in a democratic society, and everybody should have the same access. But this statute says that the DEQ is supposed to foster the industry. And it’s supposed to maximize production. Maximize production, of course, means maximizing Michigan’s contribution to global warming.

We believe global warming and climate change are actionable issues. It’s a real threat to Michigan, the United States, and the world. And we have to do our part. And this is the way anybody can do his or her part is… You know, you can only fix the people you have control over. Any activist knows this, that you turn to your own government first before you try to convince some other government. So we have most direct access to the State of Michigan. And so we’re asking the State to change this policy, asking the voters of the state to change the policy requiring us to maximize contribution of global warming and fostering the industry, and instead emphasize human health and water in the environment.

You’d think that’s what environmental regulators would do anyway, but the way it’s written, the specific wording, is that the DEQ is supposed to construe the statute, the whole oil and gas statute. It’s called Part 615. Every word, every sentence, every clause, they are supposed to construe it in a way that fosters the industry and maximizes production.

The main thing I would stress to your listeners if you’re interested in what we’ve been discussing, is to go to our website, letsbanfracking.org and sign up into our database to be a volunteer circulator. It’s not sufficient if you call us and wish us good luck and send us an email. We need circulators to sign up and do it on the database, which is on our website. And that’s the best and most effective way anyone who wants to participate in this process can become involved.

energy-101.org: If I’m vaguely interested or if I start to have questions, what types of information are available on your website?

Ellis: Well, there are all kinds of resources and scientific articles backing up what we say. We have a link to our other education website called banmichiganfracking.org. And that’s where you’ll find educational material and the groups that support us, clicking on the PayPal button to give money. You can do that. There’s a very detailed FAQ section on the committee’s website, letsbanfracking.org, which explain all the mechanics of an initiative petition and the meaning of the language and the ins and outs of how that’s done and how petitioning is done. I would direct people to the FAQ page.


  • Comment by upstartgreen — April 27, 2013 @ 12:00 am

    Go Ellis go. The DEQ is totally under corporate control.

  • Comment by Susan Rankin — June 22, 2013 @ 10:34 am

    Wow Ted,
    I love following your arguments so dramatically and compellingly laid out. I want to know more about your cases too. Congratulations to you and LuAnne for this great work! Tip my hat and bend a knee! Susan

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