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Fracking judgment creates uncertain future
July 15, 2016 Jerry Purvis   

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The future of wastewater disposal from hydraulic fracturing, or fracking, is unknown after a district court ruling against the firm that originally applied for the procedure.

On June 29, District Judge Derek Weimer, based in Cheyenne County, ruled the Nebraska Oil and Gas Conservation Commission (NOGCC) had exceeded its authority in approving the application from Colorado-based Terex Energy Corp.

Terex’s application submitted in November 2014 to dispose of fracking wastewater from out of state into an abandoned oil well in Sioux County, just north of Mitchell. The site was expected to process 10,000 barrels of wastewater a day, requiring 80 trucks daily to provide transportation.

Despite concerns from the Nebraska Legislature, the commission approved the Terex request in April 2015. That approval was challenged by several surrounding landowners who said the commission didn’t have the authority to grant disposal permits for fracking wastewater from other states. They were concerned about potential water contamination from the wastewater disposal. Another concern was how local roads would hold up to heavy truck traffic.

District 48 State Senator John Stinner of Gering said there were two major points in Weimer’s ruling. “Judge Weimer and a lot of us were concerned about the application process. What we’ve done in statute is to adjust according to what the people are telling us.”

The statute Stinner referred to was LB 1082, passed by the state Legislature in March 2016. The legislation revises the policy and purpose of the commission, eliminating language that it promoted the industry, and replacing it with wording that supports development of the industry in a responsible manner while promoting health, safety, and sound environment.

The legislation requires notice of an application be given to a local governing body regarding any proposed commercial underground injection well. The notice, submitted to the Natural Resources District, would include information on the proposed location of the well. The bill also would require Class II injection well operators to sample and analyze the injected fluids at least once a year, and then provide that data to the commission.

When fracking wastewater is used by commercial interests, affected parties such as municipalities, the Natural Resources District, and counties need to be included in overseeing the process. Local governments retain a voice in any hearings over water injection applications.

“Judge Weimer also ruled the (commission) had no oversight in fracking wastewater coming in from out of state,” Stinner said. “There’s a concern in the Legislature about the outcome. This could spread to other agencies and commissions.”

Stinner said in the final analysis, the state wants to have a robust oil and gas industry, but also wants to assure the state has quality water.

“I’m waiting on the Oil and Gas Commission to see how they want to proceed,” Stinner said. “I’m sure they’ve talked with the Attorney General. We’ll wait and see, then weight the outcomes.”

In his weekly column, District 43 State Senator Al Davis of Hyannis said Weimer’s ruling was a significant victory for those who opposed the initial decision to allow Terex Energy Corp. to take over the abandoned well and use it to deposit fracking wastewater.

“The fear was that Nebraska would become a dumping ground for out-of-state wastewater being placed in Nebraska injection wells because our regulations were less stringent than those of our neighboring states, and this ruling will temporarily alleviate that fear,” Davis said.

“Surely, this is not the last we will be hearing of this issue, and next year the Legislature may have to answer for the unclear authority the state has provided for the Oil and Gas Commission in this case.”

One of the petitioners in the district court case against the Nebraska Oil and Gas Conservation Commission and Terex Energy was Jane Grove, whose property is just a half-mile from the abandoned well.

“We felt it was incorrect to have a well of that size in the area,” she said. “Our main concern is protecting the water. Not just our water, but the whole Ogallala Aquifer. We need to protect our natural resources and this isn’t our wastewater. It’s coming from out of state.”

Grove added she was very pleased with the decision, but is waiting to see if the commission decides to appeal the ruling. The commission has 30 days to file one.

Stinner said if there is an appeal, it’s essential the people and local communities have a voice in the process going forward.
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