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VIII. State Jurisdiction and Regulatory Process Related to Regulation of H2S
By James M. Olson
Olson, Noonan, Ursu & Ringsmuth
State law classifies hydrogen sulfide as a hazardous substance. Three state agencies or units of government
have the authority to regulate H2S risks from oil and gas wells, pipelines and related facilities.
One of these agencies, the Department of Environmental Quality, through its Geological Survey Division,
has adopted a few limited provisions to regulate certain procedures or technical requirements for H2S wells
and facilities.
None of these provisions provide a standard or level of H2S over which wells are outright prohibited or
limited as to location and other restrictions. None contain procedures for public disclosure of H2S levels, prior
public notice or hearings on the permit application, or emergency response plans.
These provisions fall short of what is required by way of procedures, reporting, standards, monitoring and
emergency response to address the problem. Moreover, what few provisions there are have not been
adequately applied or enforced.
Air Quality Division Responsibilities
The Air Quality Division of the DEQ is charged with preventing deterioration of air quality from emissions
of pollutants or hazardous substances. It has the authority to regulate H2S emissions related to oil and gas
development. To date, the division largely has chosen to defer to Geological Survey, except in those instances
where the emissions from point sources at a H2S sweetening or other processing facility reach regulatory AQD
regulatory limits for H2S or other substances or gases.
Under federal and state clean air laws, the focus of AQD has been toward the regulation of intentionally
designed point sources of air emissions, and not accidental or occasional releases or sources associated with
hydrocarbon development. Yet, the release of H2S is very real and frequent during phases of hydrocarbon
development. Valves malfunction. Flares designed as a safety mechanism fail. Flares that work emit some
H2S. Intentional releases are sometimes required to reduce dangerous pressure. Mud pits off-gas H2S.
Recommendation:
The DEQ Air Quality Division should require that oil and gas wells and related facilities handling
dangerous levels of H2S are subject to its review and permit approval.
The Department of Community Health
The Department of Community Health (DCH) has the authority to regulate risks to public health and safety
from pollutants or contaminants like H2S. The DCH has not adopted any regulations to protect the public from
exposures to H2S. Further, the District Health Departments established under the aegis of the DCH have the
authority to adopt a code or ordinance to regulate H2S risks and protect the public health from from exposure. No
District Health Department has adopted specific H2S regulations, including regulations that could address the
H2S risks inherent in oil and gas drilling, production, and transmission.
Recommendation:
The Department of Community Health and local District Health Departments could adopt regulations
requiring review and permits from the standpoint of protecting public health from any route of exposure or
possible risk.
The DEQ Geological Survey Division
The DEQ Geological Survey Division is charged with preventing "waste," which includes surface damage
to the environment. It reviews this concern in the context of an application for a drilling permit, and in
subsequent permitting for production, flow lines and sweetening or other H2S "treatment" facilities.
If all of these units of government asserted regulatory control and required permits, it could be
cumbersome and duplicative, which is contrary to the current efforts to reduce governmental spending and
streamline the permitting process. On the other hand, if any one agency or division is granted sole authority to
regulate the risks, there will be a lack or involvement of the agencies and affected interests the agencies or
divisions are charged to protect.
Streamlining and reduction of expenditures does not justify an abdication of the responsibility agencies are
charged to administer. For example, leaving the matter entirely to the DEQ Geological Survey had resulted in
an apparent abdication of even its limited regulatory framework. The Geological Survey is charged with
preventing "waste" of hydrocarbons, so has an inherent conflict in the dual charge to encourage hydrocarbon
development and protects the environment an public health.
Yet, the permit to drill or other permits required by the Geological Survey under Part 615 trigger the most
practical point of intervention for review and approval of actually proposed projects.
Oddly, the DEQ Air Quality Division has more expertise with emission and health risks, and the DCH and
District Health Departments are charged with protecting public health at both state and local levels.
Upon completion of the dispersion model, the matter will be transferred for review by the Department of
Community Health for health and safety risks to the potentially exposed public.
(continued on next page)
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