High Capacity Fracking Waste Water Disposal Well Proposed for Sioux County, Nebraska.

Sioux County landowners win appeal

District court judge rules against Nebraska Oil and Gas Commission in fracking wastewater case.

“This decision is a vindication of the rule of law and citizen involvement overcoming the bureaucratic arrogance of the Nebraska Oil and Gas Commission. It also shows how people working together can defeat the oil and gas industry and all their dirty money. 

This decision was a personal vindication for me (Ken Winston), since I testified at the Oil and Gas Commission’s hearing that they lacked the authority to grant a permit to allow the disposal of out of state waste, and the District Court agreed with that interpretation. It is also a vindication of the positions of both my prior employer, the Nebraska Sierra Club, and my current employer Senator Ken Haar on this issue. The Nebraska Sierra Club led the way along with Bold Nebraska in supporting Nebraskans’ rights to protect their land and water. Senator Haar led the legislative voices that called for the Oil and Gas Commission to delay dealing with the permit until all the legal, environmental and financial issues relating to fracking disposal had been addressed.”

END OF 2015 SESSION UPDATE ON FRACKING WASTE

By: Ken Winston

When I first heard that an out of state company was planning to dump fracking waste in an abandoned oil well in Western Nebraska, I knew that it was an important issue, one that needed greater public attention and awareness. When I looked at rules of the Nebraska Oil and Gas Conservation Commission (NOGCC), I knew that we needed to get both the public and the Legislature engaged in the issue, because it was clear the NOGCC would approve the application regardless of what we did. The last few months have shown that both of these assessments are correct.

There were three essential components of this effort: 1. Support and magnify the voices of the local people; 2. Increase public awareness of the issue; and 3. Increase awareness and support among members of the Legislature. All three components are interconnected and the effort is ongoing.

Getting in touch with folks in the Scottsbluff area was the first challenge. It involved lots of time on the phone and sending emails to find out who was willing to step up on the issue and get involved. Fortunately I discovered there is a strong-willed and smart group of people in the area who were willing to get involved in this issue. I made the 8 hour drive to Scottsbluff to make a presentation to a group of local folks on March 8th. They were very appreciative of my effort. My message to the people opposing the fracking waste dump was to ask the Legislature to impose a moratorium on any new fracking disposal wells until adequate rules could be put in place to protect our resources and our taxpayers.

On March 11^th, the Legislature held a hearing LB 512, Senator Stinner’s bill to impose fees on fracking waste. At that time, most of the testimony from supporters focused on the need for a moratorium. Senator Stinner indicated that he was open to the idea during his testimony. The oil and gas supporters used the old technique of claiming they were the experts and dismissing the painstakingly researched testimony of citizens as emotionalism.

One of the most important aspects of our efforts to increase public awareness of the fracking waste issue was the Nebraska Sierra Club’s partnership with Bold Nebraska. We have worked closely with Bold in the effort to combat the Keystone XL pipeline and I believed it was important to join forces in this effort. Our joint efforts led to the creation of an online petition opposing fracking waste disposal that has generated thousands of signatures, as well as messages for people to attend the NOGCC hearing on March 24^th and legislative alerts.

The NOGCC hearing on March 24^th was one of the most unusual meetings of a public body I have ever attended, and I have more than 30 years’ experience dealing with public meetings. During the week prior to the hearing, the Commission circulated several messages indicating that only people who owned property within one-half mile of the site would be permitted to speak at the meeting. When I pointed out there was no rule that permitted them to limit testimony in that fashion, they reversed course and said that the public would be permitted to speak after all.

The NOGCC’s statements indicating they intended to limit testimony caught the attention of several other people who found it outrageous, including the Scottsbluff Star Herald, which has done both outstanding reporting and great editorials throughout this process. This issue caused both Senator Ken Haar and the Lincoln Journal Star to offer their opinions stating this as justification for a moratorium on fracking waste disposal. Senator Haar decided to travel to Sidney for the March 24^th NOGCC hearing and presented testimony, both on his own behalf and on behalf of Senator Stinner asking them to delay their decision. I was among the 47 members of the public who testified in opposition to the proposed disposal well, in contrast to only 3 who supported it. That’s 94 % opposed, if you are keeping score.

Members of the public were shocked to hear that their testimony was completely disregarded by the NOGCC, although I suspected that the NOGCC would do that based on my initial examination of this issue. As noted previously, the NOGCC’s conduct of the meeting/hearing on March 24^th was highly unusual. After reviewing the details of the meeting and discussing them with people with expertise in the area we decided to file an open meetings law complaint in conjunction with Bold. Although the attorney appointed to address the issue decided there was no open meetings law violation based on the idea the hearing was a quasi-judicial proceeding, my research disclosed an abundance of legal theories that would have supported a conclusion in favor of our complaint.

In the meantime, interest among members of the Legislature continued to increase. In mid-April, seven members of the Legislature, including the Speaker and the Chair of the Appropriations Committee, sent a letter to the NOGCC asking them to delay making a decision. In spite of all the opposition from the public, which included letters of opposition from 8 local political subdivisions and the messages from the public and state senators I have described, on April 22^nd the NOGCC took all of six minutes to approve the out of state fracking waste permit. That decision is currently on appeal to the District Court.

In the meantime, the Sierra Club commissioned a poll which determined that overwhelming majorities of Nebraskans are strongly opposed to fracking waste being dumped in our state. The scientific poll conducted by Research Associates found the following: 1. 77 % of Nebraskans believe that we shouldn’t accept fracking waste from other states; 2. 88 % of Nebraskans believe our standards should be at least as strong as other states; 3. 84 % of Nebraskans believe the public is entitled to know all of the components of fracking waste.

In May Senator Ernie Chambers began circulating a bill that would require full disclosure of all the components of fracking waste. Since the bill would be introduced far after the time for bill introductions in the first 10 days of the session, it required 30 votes to suspend the rules. Senator Chambers got 30 co-sponsors of the bill and received 37 votes to permit its introduction, which shows how much the interest in this issue had grown since the beginning of the session. The hearing on LB 664 was held on May 27^th, two days before the end of the session. Unfortunately the bill was heard at the same time as a filibuster on a corporate agriculture bill and right before the override effort on Senator Chambers’ bill to eliminate the death penalty, which reduced the amount of attention it received from senators, media and the public. On the other hand, the public testimony by all concerned, particularly the folks in Western Nebraska, was focused and well-researched, as well as showing their heartfelt concern for protecting our life-giving water and other resources.

There are two interim studies on issues related to the Nebraska Oil and Gas Commission. Senator Stinner’s LR 154 is an examination of the NOGCC and their authority related to wastewater disposal. Senator Ken Haar’s LR 247 examines whether the functions of the NOGCC should be handled by another agency or agencies. I understand the Natural Resources Committee intends to combine both studies and plans to have at least one hearing in Western Nebraska.

For our part we are continuing to support the folks in Western Nebraska, their efforts to fight this fracking waste dump and make people aware of this issue. We are researching what other states have done with idea of finding the “gold standard” to protect our water, as Senator Ken Haar put it. We are also looking for experts who can speak authoritatively in response to the arguments made by the shills for the oil and gas industry. We will keep folks posted on future developments, including awareness-raising events and any activities by the Legislature during the interim.

April 28, 2015

 Poll Results on Fracking Waste Disposal

 The Nebraska Sierra Club today announced the release of the Nebraska Poll’s findings regarding the attitudes of Nebraskans toward fracking waste disposal. “We are not surprised that the overwhelming majority of Nebraskans strongly oppose our state being used as a dumping ground for toxic out of state fracking waste,” said Ken Winston, Nebraska Sierra Club policy advocate. “The fact these are the findings of the Nebraska Poll is significant, since it is one of the oldest and most respected polls of the state, renowned for its reliability and credibility.”

 Here are the topline findings of the poll:

• 77 % of Nebraskans surveyed indicated that Nebraska should not accept out of state fracking waste.
• 88 % of Nebraskans surveyed indicated that our standards on fracking waste should be at least as strong as those in neighboring states.
• 84 % of Nebraskans surveyed indicated that all chemicals in fracking waste should be disclosed to the public.

“Huge majorities of Nebraskans oppose the idea of other states dumping their fracking waste in our state, believe that our standards should be at least as strong as those in other states and believe that all chemicals in fracking waste should be disclosed to the public. All these findings show that Nebraskans have common sense; they understand the importance of protecting our water from toxic substances. They also understand the importance of having standards to protect our resources and the need to know what kind of toxic garbage these companies want to inject into the ground.”

Call for Legislative Action

 The Nebraska Oil and Gas Conservation Commission (NOGCC) recently approved the application for the Terex Company to dispose of fracking waste from other states in an abandoned well in Sioux County, Nebraska. The NOGCC voted to approve this application in an 8 minute meeting on April 22^nd defying the request of 7 state senators who sent a letter requesting that the NOGCC delay a decision, in spite of the 47 people who testified in opposition on March 24^th, ignoring the sworn testimony of other opponents, in spite of the 8 letters of opposition from local elected officials, in spite of the hundreds of people from the area and the thousands of people from across the state who signed petitions of opposition to this fracking waste dump.

“It is time for the Legislature to step up and take action to represent the interests of their constituents in this matter. The people are leading on this issue, and their elected officials need to heed their voices. The Legislature needs to step in and take control of this issue now in order to protect our precious aquifer and the other interests of the people, ranging from protecting schoolchildren from increased truck traffic to damage to roads and other infrastructure.”

 Other Issues that support legislative action

 The opinion of the special investigator appointed by the Attorney General in response to Bold and Sierra Club’s Open Meetings Act complaint was a victory for bureaucrats in opposition to the interests of public participation in government.

 “There are numerous statutes and plenty of precedents that would lead to the conclusion that public’s voices should have been heard by the NOGCC at their March 24^th hearing. The fact the investigator came to the opposite conclusion on the heels of the NOGCC’s decision helped to fuel the sense among many people that their government, which is supposed to represent them, is instead intent on ignoring them. One way to increase public confidence in this process would be for the Legislature to grant authority over Open Meetings Act complaints to the Ombudsman’s Office, reducing the potential conflict between the Attorney General both advising the agency and investigating their behavior.”

 There are numerous other reasons for the Legislature to take over this process. They include the following:

• NOGCC has repeatedly claimed their rules require them to limit testimony to people who own property within in one-half mile of the site. There is no rule or statute with that provision.
• NOGCC rules are far weaker than those of Colorado and many other states.
• NOGCC rules on injection wells are weaker than those of the NDEQ for similar wells.
• NDEQ’s rules on injection wells provide clear guidance for public comment.
• It is unclear which NOGCC rules on injection wells applied at the time of the hearing since different rules were posted on their website after the hearing even though they had been previously approved.

For more information: contact Ken Winston 402-212-3737, kwinston@inebraska.com

The Nebraska Poll
Spring Edition, 2015                                                                         

FINAL REPORT

The Nebraska Poll, Spring Edition, 2015
EXECUTIVE  SUMMARY

Methodology

• Research Associates completed 576 telephone interviews from random samples of Nebraska land
• and cell phones during April of 2015.
• The purpose of a portion of the study was to measure Nebraskans’ attitudes relative to the disposal of toxic waste from fracking operations.
• The statewide study has a maximum error range of +/- 4.1% at a 95% confidence level.

Disposal of toxic waste from fracking operations

• A super-majority (77%) of respondents indicated that Nebraska should not accept toxic waste from fracking operations in other states. Breakdowns by congressional district showed that respondents in District 3 were statistically significantly more likely to oppose accepting toxic waste from fracking operations in other states (81% opposed in District 3 compared to 77% statewide).
• District 3 respondents were less likely to be undecided on the issue of accepting toxic waste from other states.
• While District 2 respondents were statistically significantly less likely to answer this question in the negative (73% compared to 77% statewide), there was a super majority of opposition in District 2 as well.
• A super-majority (88%) of respondents indicated that Nebraska’s standards for disposing of toxic fracking waste should be at least as strong as the rules in neighboring states.
• A super-majority (84%) of respondents indicated that all chemicals in fracking wastewater should be disclosed to the public.

Demographics

• Respondents’ ages (controlled): 16-20, 4%; 21-34, 12%; 35-49, 32%; 50-64, 37%; 65 up, 15%.
• Respondents’ annual household incomes: under $40,000, 19%; $40,000-80,000, 36%; over $80,000, 45%.
• Respondents’ phone types: 67% from traditional landlines; 33% from cell phones.
• Respondents’ Congressional District (controlled): District One, 34%; District Two, 33%;  District Three, 33%.
• By control, respondents were 51% male and 49% female.

About The Nebraska Poll

The Nebraska Poll was first registered by Joe B. Williams, an early Nebraska public opinion
pollster. When he retired, he selected Research Associates as the next owner of The Nebraska Poll,
which is currently the oldest poll in the state. Research Associates has been conducting public
opinion polling in Nebraska since 1975.

Research Associates • 402.435.4048 • researchassoc@windstream.net