More than 2,000 injection wells improperly permitted in Kansas

In this April 24, 2015 file photo, a worker empties oilfield wastewater from a tank truck into storage tanks on a ranch near Crossroads, N.M. The salty water was pumped from oil wells in the area and will be taken to an injection well that pumps it back underground. (AP Photo/Charlie Riedel)

There are 60 saltwater injection wells — the type of well that creates earthquake concerns for some — located in Douglas County that didn’t go through the state’s proper permitting process

But that’s just a small slice of the issue. The permitting problems that were first discovered in Douglas County have led to a state investigation that has found more than 2,000 injection wells across the state that were not properly permitted.

Acting on an inquiry from Cindy Hoedel, the Kansas Corporation Commission in November ordered an internal investigation of more than 4,000 saltwater injection oil well permits approved since October 2008, the year the KCC changed the public comment period to be cited in published public notices for proposed injection wells from 15 to 30 days.

In a Feb. 2 report, the KCC found 1,007 permits for 2,111 injection wells, including 60 in Douglas County, were approved with public notices that stated the public comment period was only 15 days, instead of the required 30. The investigation also found that the erroneous public notices were provided to the KCC staff, but the errors were not detected as part of the review process.

Hoedel lives in the Flint Hills about 70 miles southwest of Douglas County, but she stays current with statewide developments in the fight against injecting saltwater into oil wells through her activism with the Flint Hills Stewards. As such, she was aware last fall that the KCC found the public notices for two injection well projects near Eudora mistakenly stated that the public had 15 days to comment (the KCC is still considering the two applications). That mistake, which Douglas County opponents of the injection wells first noticed, led the KCC to order that the public notices be republished with the correct 30-day public notice.

Her interest piqued, Hoedel checked an online database of public notifications published in the last three months in Kansas to see if there were other injection well notices stating the incorrect 15-day public comment period.

“I found an astounding number of 25 to 30 improperly noticed,” she said. “I was a bit shocked by that. I started wondering how far back the problem went.”

Hoedel’s next step was to send in October two emails to KCC staff documenting the faulty public notifications she discovered. Those emails led the KCC to order the investigation, which discovered the 1,007 permits with problematic public notices.

The November order for the KCC investigation also created a jurisdictional docket, allowing well operators and others with standing to file briefs about what should be done once it was known how many injection permits were approved with improper public notices.

Douglas County government was among the parties responding, joining with the Sierra Club and a number of Douglas County residents in engaging Lawrence attorney Robert Eye to represent them before the KCC.

Douglas County gets involved

Douglas County Commission Chair Nancy Thellman said the decision to become involved in the docket and engage Eye for a cost not to exceed $2,500 grew from concerns that the city of Lawrence and county jointly expressed in an October letter to the KCC soon after public notices for the two county injection wells were published. That letter stated that the 15-day public comment period cited in the public notice was too short for the two jurisdictions to make informed comment on the consequences of the injection process and called for the KCC to adopt a 60-day period.

Thellman said the county was not taking a stand on the practice of injection wells by engaging Eye. The county joined the action with the goal of making the KCC follow its own rules and procedures.

Saltwater injection wells have been tied to an increase in the number of earthquakes in Kansas and surrounding states, and the KCC imposed limits on the volume of wastewater that could be injected into wells in portions of Harper and Sumner counties in south-central Kansas after officials at the Kansas Geological Survey said there was a likely link between those wells and a series of minor earthquakes in the area. However, an oil industry geologist told the Journal-World last fall that the much smaller amounts of water injected into Douglas County wells would have no seismic consequences.

Eye said the brief he submitted argues that all 1,007 permits in question should be revoked because the KCC failed to follow its own established procedures to protect the due process rights of Kansas citizens.

“The only way to remedy is to revoke all the permits issued to applicants with defective notices, and have them reapply using proper notification so that citizens can register their objections in a systematic way,” he said.

Briefs from the attorneys representing well operators can be viewed on the KCC website, Those briefs do concede the public comment deadline was mistaken but argue what is characterized as a “clerical” error was harmless and should not void issued permits or make them subject to further review. Moreover, oil industry attorneys argue that case law has found the misstatement of the public comment period in a public notice is a “palpable irregularity but it cannot be regarded as a fatal defect.”

Eye said KCC staff would make its recommendations of how to handle the improper notification issue to the three KCC commissioners in early June. Commissioners would then make a decision in late June. In making that decision, the KCC needed to address the internal breakdown that allowed the approval of so many improper applicants.

“I don’t know where the breakdown occurred, but I just know it did,” he said. “Whether it’s the fault of staff, the applicants or both, it’s important to figure out.”

Keith Brock, an Ottawa attorney who filed 36 docket briefs for well operators and oil and gas industry associations, writes in his briefs that the published notification errors occurred when applicants copied forms from the KCC website that weren’t updated to reflect the 2008 30-day comment change. Written notices mailed to interested parties had the correct 30-day comment period, he writes.

For now, the KCC is mum about any steps taken to ensure that staff reviews the content of injection permit applications so that they conform to established policy. Linda Berry, public information officer for the KCC, said staff could not comment because the docket on the applications was still open.

Hoedel said she was encouraged with the KCC’s willingness to investigate the improper permits and establish the docket to resolve the issue. But she said the KCC staff’s approval of so many wrongfully noticed permits for so long point to underlying problems that call for legislative action.

“I think there’s an opportunity for the Kansas Legislature to get involved,” she said. “The KCC regulatory process is broken. The Legislature needs to form a task force to see what can be done to fix it.”