DEP Evolving With Regard to Marcellus Permitting

Department of Environmental Protection Secretary Randy Huffman said the state does need change, and change is happening.

The State Journal
11 June 2011
By Pam Kasey

MORGANTOWN -- As experience with Marcellus shale gas well activity accumulates across the state, the Department of Environmental Protection’s understanding of permitting needs is changing month by month.

“I would say there is nothing static about what we’re doing right now — that we are making changes, and it’s evolving on a regular basis,” said DEP Secretary Randy Huffman.

Huffman traveled to Morgantown earlier this month to address residents who are concerned about two Marcellus wells Northeast Natural Energy is drilling just above the region’s drinking water intake on the Monongahela River.

The DEP wasn’t prepared for the type and scale of activity associated with the Marcellus shale ramp-up, the residents heard from Huffman. The DEP’s proposed regulations on the matter were not passed by the Legislature earlier this year.

Meeting participants said the DEP should stop permitting Marcellus wells until it is prepared. In a follow-up conversation with The State Journal, Huffman said the state does need change, and change is happening.

He cited the DEP’s establishment in 2009 of a list of more than 40 pollutants of concern that wastewater treatment plants have to control if they are to accept gas well drilling brine for treatment. Clarksburg’s plant stopped taking brine, and no West Virginia facility currently accepts it.

Huffman also pointed to the agency’s Water Withdrawal Guidance Tool that went online in 2010 to identify in real time for drillers any streams where high-volume surface water withdrawals for hydraulic fracturing would be dangerous to stream life.

“We’re putting new policies and new guidance into place,” he said. “It may not be to the speed which the public would like to see it happen, but we’re doing a lot of the things that have been suggested using our existing authority in bigger and better ways while we seek the regulatory change we’re looking for.”

Cumulative Impacts

Huffman said he is taking concerns about cumulative impacts seriously.

Most pressing among those, as measured by unaddressed resident complaints, may be cumulative air quality impacts.

On that topic, Huffman’s expression of awareness may seem ill-timed.

His agency just fought and defeated a permit appeal in which Wetzel County residents asked to have three compressor stations combined into one source that would cross a threshold for regulation under the Clean Air Act.

Asked why the agency fought that permit, Huffman responded through spokeswoman Kathy Cosco that the compressor stations didn’t meet the Clean Air Act criteria for aggregation.

However, Cosco said, the agency is designing a data collection program to investigate residents’ concerns.

Several air quality studies conducted by the Pennsylvania Department of Environmental Protection in the past year have found elevated levels of some contaminants at some sites, but none at the level of health risks. The Pittsburgh-based Group Against Smog and Pollution criticized at least some of those studies as failing to account for cumulative impacts.

Special Conditions, Public Notice

When it learned in early May of NNE’s wells, the Morgantown Utility Board, provider of drinking water to some 90,000 area residents, expressed shock to DEP that there had been no public notification or comment period. MUB negotiated special safeguards with the company — these included redundant spill prevention and containment measures, integrity testing of well casings and documented removal of all wastes from the site — and persuaded the DEP to place its negotiated safeguards in the permits. DEP has learned from that experience, Huffman said.

“Prior to this Northeast permit, we’d never discussed the proximity to drinking water intakes of Marcellus wells,” he said. “We’d never discussed in any depth the whole notion of a formal public comment period.”

The agency learned special permitting conditions in locations where drinking water intakes or other sensitive areas are concerned, as well as public notice under certain circumstances, “are relevant to apply to future permitting decisions,” he said.

As an illustration of the DEP’s new thinking, he noted special conditions the agency already placed on two wells it permitted to NNE in late May on Dunkard Creek, the site of a massive fish kill in 2009. “That’s pretty unique to what we have done historically,” he said.

Permit Denials

There is a marked disconnect between those concerned about drilling or hydraulic fracturing accidents and the DEP on the question of whether any site is inappropriate for a well.

Participants at the June 2 public forum said it seems as though DEP simply approves every permit application.

Huffman disagreed with that.

“Many oil and gas permits, I don’t know if all of them but many, are denied in the form we originally receive them,” he said. “Sometimes they get denied two, three, four times. We tell them what they have to do to get permitted, but that’s the way the process works.”

Asked whether he believes any site in the state is inappropriate for Marcellus operations — the claim of many Morgantown-area residents for the NNE site — Huffman listed wetlands and very steep sites, but excluded the NNE site.

“I think that we can manage the risk upstream of a public water intake with existing authority,” he said.

Special Legislative Session?

Calls continue from many quarters for a special session to take up proposed Marcellus legislation that was not passed during this year’s regular session.

Huffman said Tomblin has been waiting for the sides to come closer so a special session would more likely bring results.

Based on its new experience, DEP likely would revise the proposal it wrote last summer, he said.

“Things like public notice, proximity to drinking water, issues related to more sensitive areas like trout streams, those were not specific to our proposal,” he said.

Huffman disagrees with any notion that permitting should stop until new regulations are in place. “To whose satisfaction does it have to be exactly right? Mine? The citizens’? The Legislature’s?” he asked. “There’s always going to be the argument to be made by some entity that it’s not right yet.”