Thursday, October 11, 2012

DRC Guest Column: Ordinance needs balance

I have a Guest Column in today's Denton Record Chronicle (complete with a really bad pic of me!). Here it is:

Denton has entered the homestretch in the marathon reform of its natural gas drilling and production ordinance. On Sept. 11, the City Council approved a second extension of the moratorium and unveiled a timeline leading to adoption of the final ordinance in December.

It all began with the release of the draft ordinance at a meeting of the gas well task force on Oct. 1. The draft will remain online for public comment until Friday. This comes after a long “scientific and legal review” conducted by city staff and consultants.

Indeed, since the last task force meeting on March 26, the process of drafting a new ordinance has been sequestered behind a veil of technical expertise.

Until now, even City Council members had not had a peek behind the curtain. Yet, during the City Council meeting on May 8, our elected officials requested a process that would be more iterative and transparent.
They wanted to see what the scientific and legal experts made of minority recommendations that were not passed by the task force. They wanted a council work session on such alternative proposals.

They also wanted to see a comparative report of other city ordinances and a summary of the legal landscape detailing lawsuits faced by other municipalities.

And they made clear that these steps should happen prior to the release of a draft ordinance.
None of this happened. In the May 8 meeting, Mayor Mark Burroughs said that for staff to present a finalized legal document would be “a waste of a lot of resources” and that the ordinance must be in a “developmental stage” if public input was to be effective.

Yet, the ordinance released is far beyond a developmental stage.

This gives me a sinking feeling that over the past six months the expert review process has outrun the democratic process.

My concern is that this draft has become a juggernaut with so much momentum provided by the force of scientific and legal expertise that democratic deliberation will be bowled over. Any ideas the public may have will not fit with the current framing and will derail the process.

The train has left the station and is chugging down the tracks.

There is a culture clash between council and staff that reflects the Janus-face of the ordinance. On one hand, it is a technical document that must satisfy complex legal standards. This requires expert crafting.
On the other hand, it is a political document that expresses community values.This requires democratic deliberation.

What makes this balancing act so challenging is that there is no clear line between the technical realm of expertise and the values realm of the public sphere.

Yet the expert-review process has presumed just such a strict dividing line. The assumption is that the experts are taking the values expressed at task force and council meetings and packaging them into technical language.

This packaging is seen as a neutral act that leaves the values untouched. If that is the case, then the public can now passively await the technical translation of their values deliberations.

But things are messier than that.

First, the values are contested with remaining disagreements about how to prioritize basic goods and goals.
Second, the technical review process necessarily included only a limited subset of experts. But there is disagreement among the experts when it comes to shale gas development and its regulation by municipalities.
Third, even when there is consensus on a general idea, it is not possible to remain value-neutral when writing technical language. The final wording will inevitably give the idea a certain valence.

The new draft ordinance illustrates this last point. The gas well task force unanimously approved the idea of “vapor recovery units.” This shows up in the new draft as follows: “Vapor recovery equipment is required for facilities not included under Rule§106.352 of TAC Title 30, Part 1, Chapter 106, Subchapter O; or its successor regulation.”

This rule of the Texas Administrative Code (TAC) allows a gas site to emit up to 250 tons per year (tpy) of nitrogen oxides (NOX ) or carbon monoxide (CO); 15 tpy of particulate matter with less than 10 microns (PM10); 10 tpy of particulate matter less than 2.5 microns (PM2.5); and 25 tpy of volatile organic compounds (VOC), sulfur dioxide (SO2) and hydrogen sulfide (H2S).

My reading of this is that vapor recovery units will only be required for wells that exceed these emission levels. This means we can still have wells that emit 135 pounds of VOCs every day. That is certainly one way to write up the technical language for the general idea of including vapor recovery units. But I don’t think it is what most residents had in mind.

This shows how over the past six months, as resident involvement has been forced into hibernation, values judgments were being made and built into the ordinance. But this happened behind closed doors and was masked as a neutral, value-free operation.

It may not be too late to restore democratic legitimacy and genuine public involvement. But doing so will require seeing the draft ordinance for what it is — a document that retains contingencies that could legitimately be altered.

We need to be wary of any pretense that this draft, because vetted by experts, represents the “one best way” for Denton to regulate fracking.

ADAM BRIGGLE is Faculty Fellow in the University of North Texas Center for the Study of Interdisciplinarity and chairman of the Denton Stakeholder Drilling Advisory Group.


  1. Your reading of Rule§106.352 of TAC Title 30, Part 1, Chapter 106, Subchapter O; is incorrect.

    That rule allows sources that are not Major Sources for NAAQS pollutants (VOC = ozone) to comply under the Permit By Rule (PBR). PBR requires emission controls and management

    Vapor recovery, based on what you state, will be required for Major Sources. This in no way whatsoever allows other sites to emit 135 pounds per day.

    Please check with the TCEQs Small Business Office for clarification on how PBR works and what it requires.

    1. Thanks for the tip. I ran this by our local Staff and they said my reading of it was correct...but I had a sense there was more to be found under here. I will pursue this lead.