Acting W.Va. Governor Orders Emergency Shale Rules

Associated Press
13 July 2011

By Lawrence Messina, The Associated Press

CHARLESTON, W.Va. -- West Virginia regulators will temporarily take the lead on regulating Marcellus shale drilling while lawmakers attempt to craft long-term rules for developing this rich natural gas reserve, acting Gov. Earl Ray Tomblin announced Tuesday.

Mr. Tomblin signed an executive order that directs the Department of Environmental Protection to issue emergency rules largely focused on the hydraulic fracturing that can accompany drilling into the mile-deep rock formation.

Also known as fracking, the process involves drillers pumping large amounts of water mixed with chemicals and sand into wells to crack the shale and release the gas. Environmental concerns include draining local streams to provide the water, and drinking water that may become tainted by fracking fluids.

Both industry and environmental groups called Tuesday's order a positive first step.

Mr. Tomblin wants the DEP to require drillers to estimate water usage, and for the agency to approve any disposal of frackwater by way of public treatment plants. For wells that will draw more than 210,000 gallons of water monthly, companies would have to file water management plans that identify water sources and chemical additives, among other details.

Mr. Tomblin wrote in the order that accidental spills, "while rare, can have significant, harmful effects on our citizens, streams and rivers, and wildlife. The risk to our citizens, however slight, is too great to not act swiftly to promulgate additional regulations to ensure the responsible development of the Marcellus Shale in West Virginia," the order said.

The rules for large-scale wells would also limit water withdrawals to preserve their sources, and require properly encased wells to prevent leaks. Poorly built gas wells have been blamed for contaminated drinking wells in neighboring Pennsylvania.

New wells that employ the unconventional horizontal drilling method often relied upon by Marcellus developers must publish public notice when they fall within municipal boundaries. Several communities -- Wellsburg, Lewisburg and, most recently, Morgantown -- have barred Marcellus drilling that includes fracking. Morgantown has since been sued over its ordinance.

Among the other rules outlined by Mr. Tomblin's order, registered engineers would have to certify site construction and sediment control plans for all well sites that will disturb three or more acres.

Acting Senate President Jeff Kessler, a Marshall County Democrat who appeared alongside Mr. Tomblin and endorsed Tuesday's move, said emergency rules would remain in effect up to 15 months. DEP Secretary Randy Huffman, also on hand, said he hoped to have rules written within a month.

West Virginia counted more than 620 Marcellus wells in 2009. While the emergency rules would apply mostly to new wells, state Independent Oil & Gas Association President John Haskins said the water withdrawal-related provisions would affect all operations going forward. Mr. Haskins and other industry representatives were among the throng that packed the governor's Capitol reception room for Tuesday's announcement.

Mr. Haskins said lawmakers should consider them as a framework as they pursue permanent rules on the subject. He said Mr. Tomblin's order sends an important, positive signal to industry. "Capital investment for Marcellus Shale is huge," Mr. Haskins said. "If we have an uncomfortable political atmosphere in the state, that money will not come. The jobs will not be here."

The Legislature proved unable to pass Marcellus rules during the regular session this year. A House-Senate committee recently began attempting a compromise measure, with the goal of crafting legislation that could succeed in a special session before 2012.

"I believe Acting Governor Tomblin is being prudent," House Speaker Rick Thompson, D-Wayne, said in a statement. "In the meantime, the Legislature's Select Committee on Marcellus Shale will continue to move forward in developing some long-term guidelines for the relationship between oil and gas extractors and the owners of surface rights and mineral interests that protects the environment and ensures proper labor practices."

The committee began its efforts Tuesday with a scientific overview of horizontal drilling and fracking. It also heard from Morgantown City Council member Bill Byrne, who oversaw passage of its Marcellus ordinance while he was mayor. He said the absence of legislation and hundreds of resident complaints prompted the measure, after drilling began within a mile of an area drinking-water intake.

Mr. Byrne urged lawmakers to approve statewide rules, adding that Tuesday's order appeared to address at least some water-related concerns. The committee meets again today.

Questioning whether the select committee can succeed, Don Garvin of the West Virginia Environmental Council called Tuesday's order a good first step. He also noted that concerns over Marcellus drilling go beyond fracking, and involve such other areas as surface owner rights and damage to rural secondary roads.

"We will continue to press the Legislature for a strong bill," Mr. Garvin said. "This will in no way provide all of the protections that are needed, and I think the governor has admitted that. He says he supports the legislative process, so I'll take him at his word."