Testimony of Ken Winston

Nebraska
Chapter
P.O. Box 4664, Omaha, NE
68104
http://sierranebraska.org/
www.facebook.com/NebraskaSierraClub
April 8, 2015
Senator Ken Schilz, Chairperson
Members of the Natural Resources Committee
State Capitol
Lincoln, NE 68509
RE: Opposition to NOGCC Appointment
Dear Senator Schilz and members of the Natural Resources Committee:
The Nebraska Sierra Club is opposed to the appointment of John Rundel to the
Nebraska Oil and Gas Conservation Commission, (NOGCC) not because of opposition
to Mr. Rundel personally, but because the Legislature needs to take a long hard look
at the rules and procedures of the Oil and Gas Commission before it takes action to
confirm another member of that commission. We focus on three areas; issues related
to the NOGCCs conduct of their March 24th hearing, whether the NOGCC has legal
authority to authorize disposal of out of state fracking waste and the limited and
confusing state of the NOGCCs rules.
First, there are serious issues about whether the NOGCC violated the Open Meetings
Act in its conduct of the hearing held on March 24 th. The decision by the Nebraska
Sierra Club and Bold Nebraska to file an Open Meetings Act complaint was not done
lightly, but rather after an extensive review of what happened at the meeting,
provisions of state law and the Commissions own rules. The NOGCCs claim that
testimony would be limited to persons owning property within one-half mile of the
proposed site is a perfect example at the heart of these issues.
The NOGCC has disclosed no rule which would have permitted it to limit testimony to
persons owning property within mile of the proposed site. The NOGCC rule which
appears to most closely govern the conduct of testimony at the hearing, Chapter 6,
Rule 007.10 states: All persons who wish to speak for the record at any public
hearing before the Commission or its examiners shall register their appearance at
the door on a form to be provided by the Commission.
The NOGCC stated during the afternoon session of the hearing that none of the
public testimony, including that provided by Senator Ken Haar and a letter from
Senator John Stinner, as well as 50 other people who traveled from as far away as
Omaha, would be included in the record of the hearing, despite providing no citation
to a rule that permitted or required them to do that. The right to speak at a hearing
is rendered meaningless if it is not considered part of the official proceedings. This
also appears to violate their own rules, including Chapter 6, rule 007.05, Chapter 6,
Rule 007.10 and Chapter 6, rule 008.03 which provides: No decision shall be
rendered, sanction imposed or rule or order issued except in consideration of the
whole record.
The only reason within the NOGCCs rules that would appear to justify exclusion of
the testimony of the public would be for the NOGCC to conclude that it is irrelevant.
Surely the NOGCC does not wish to take the position that the testimony of State
Senators, local officials and citizens from across the state is irrelevant in this matter.
Second, whether the NOGCC has the statutory authority to permit an injection well
for disposal of out of state waste. Permitting an injection well primarily intended to
dispose of another states fracking waste appears to exceed the NOGCCs statutory
authority. The NOGCC has two fundamental purposes: 1. To promote the
development, production and utilization of gas and oil in the state of Nebraska,
and 2. To prevent waste. See Neb. Rev. Stat. section 57-901. A proposal to take waste
material largely generated from other states does neither. The fact that the NOGCC
derives its revenue from Nebraska resources and will derive no revenue from out of
state waste raises further issues about whether the Commission has authority in this
area.
Third, the NOGCCs rules are inadequate to deal with issues of importation of
fracking wastewater. A comparison with Colorados rules is illustrative.
Financial assurance requirements. Colorados are much more extensive than the
NOGCCs, including requirement of $1 million in liability insurance.
Public input standards. Colorado has extensive provisions for input from the public,
including input from local governing bodies. The NOGCC has very limited rules in this
area and they have applied them in a confusing and arbitrary fashion, as discussed
earlier. This has resulted in confusion among members of the public, as well as
negative results, including the Open Meetings Act complaint.
Standards for safety. Colorado has much more extensive rules on this subject.
Standards to protect wildlife. Colorado extensive rules in this area; in comparison the
NOGCC has none. Given the fact that wildlife tourism generates millions of dollars
annually for Nebraskans, we should have standards to protect wildlife from the
impacts of fracking disposal.
Three other areas where we need absolutely the best available standards to protect
the interests of Nebraskans.
1. Provisions to protect water. We have some of the best and most abundant
water resources in the US, the lifeblood of our agricultural economy.
2. Provisions for disclosure of all the contents of the substances being injected
into the earth. If they are harmless, there should be no problem in disclosing
them. If they are toxic we need to know so we can deal with a leak or a spill.
3. Provisions to take care of the needs of communities, including paying for

damage to roads and requiring alternate routes away from schools and other
facilities and resources that may be vulnerable.
For all of the above reasons, we ask the Committee to postpone this appointment
and deal with the issues necessary to protect the interests of Nebraskans, our land,
our water, our tax dollars and our childrens future.
Sincerely,
Kenneth C. Winston
Nebraska Sierra Club Policy Advocate

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P.O. Box 4664, Omaha, NE

3. Provisions to take care of the needs of communities, including paying for

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