WVDEP’s ‘Rough and Raw’ Drilling Legislation
WV Gazette Blogs
15 November 2010
By Ken Ward Jr.
( http://blogs.wvgazette.com/watchdog/2010/11/15/wvdeps-rough-and-raw-drilling-legislation/
)
Well site during active drilling to the Marcelllus Shale formation in
Upshur County, West Virginia, in 2008. Photo copyright West Virginia
Surface Owners Rights Organization.
Vicki Smith over at The Associated Press had the story the other day
summarizing the latest draft of oil-and-gas drilling legislation under
consideration by the West Virginia Department of Environmental
Protection:
The Department of Environmental Protection wants natural gas companies
to submit comprehensive water management plans, including lists of
chemicals to be used, when applying for future permits to drill
horizontal wells in the Marcellus shale field.
A 100-page draft of proposed legislation provided to The Associated
Press late Friday shows the DEP wants companies to identify not only
when, where and how much water they withdraw for drilling operations.
The department also wants to know what chemicals companies use in
hydraulic fracturing, how much wastewater they produce, and when and
where they would dispose of the waste.
This is all part of a review of the WVDEP’s handling of oil and gas
issues launched by agency Secretary Randy Huffman a while back.
I’ve had a couple of requests for copies of the draft legislation that
Vicki wrote about, and WVDEP spokeswoman Kathy Cosco was kind enough
last week to provide a copy to the Gazette. It’s not clear if WVDEP
plans to post the document on the agency’s Web site. I asked Kathy
about that and she told me:
This is a very rough draft of legislation DEP is trying to pursue.
Because we expect it will change a few times before we actually submit
it to the legislature, I don’t know if we will be posting it yet or
not. I’ll have to get back to you on that.
So what the heck … I’ll just go ahead and post the 100-page document
here.
( http://wvgazette.com/static/watchdog/wvdepdrillingdraft.pdf )
( or
click here for UMRA .PDF file )
Interestingly, Huffman had this to say in Vicki’s story about WVDEP
providing copies of the document to the press:
“It’s very rare that we release proposed legislation in such a rough
and raw format, but we didn’t want there to be an appearance of secrecy
or lack of access,” Huffman told the AP, which had requested the
documents.
By way of background, WVDEP officials are meeting periodically with a
stakeholder group that is offering input to the agency about its oil
and gas review and about potential legislative changes in how drilling
is policed in West Virginia. And, WVDEP has helpfully posted some
documents from that review — including presentations from various
stakeholders and some agendas from past meetings — on its Web site here.
But WVDEP is not publishing notices announcing future meetings in the
State Register, and apparently does not consider the stakeholder
meetings to be open to the general public or the media.
I asked Kathy about this, and she told me:
The task force meetings have not been placed on the register because
they do not fall under the definition of a meeting that requires
notice. It is not a “governing body of the agency for which a quorum is
required in order to make a decision or to deliberate toward a decision
or any matter which results in an official action.” The members of the
task force provide expertise and information, but do not vote on
anything.
Is WVDEP correct about this? You decide:
The public meeting and advance notice provisions of the state’s open
meetings law apply to all “governing bodies” and that term is defined
this way:
“Governing body” means the members of any public agency having the
authority to make decisions for or recommendations to a public agency
on policy or administration, the membership of a governing body
consists of two or more members; for the purposes of this article, a
governing body of the Legislature is any standing, select or special
committee, except the commission on special investigations, as
determined by the rules of the respective houses of the Legislature.
A “public agency” as used in that definition, is further defined this
way:
“Public agency” means any administrative or legislative unit of state,
county or municipal government, including any department, division,
bureau, office, commission, authority, board, public corporation,
section, committee, subcommittee or any other agency or subunit of the
foregoing, authorized by law to exercise some portion of executive or
legislative power.
I also asked Kathy what the harm would be in allowing the press or
general public to attend the stakeholder meetings, and this is what she
said:
The people who were selected to be on that taskforce were picked for
their individual knowledge, experience, and expertise. Those nine
people are being very frank and open in their communications with the
DEP about what industry is capable of doing and perhaps should be
doing. Having an audience, especially the media, would change the tone
and tenor of these meetings entirely, and probably have a chilling
effect.
We believe it is more important to the people of the state for the
members of this task force to feel safe enough to engage in frank
discussions that lead to progress than to have them withhold worthwhile
information for fear it will be printed on the front page of the paper.
The people on this taskforce do not vote on anything, this is not a
consensus-based process, and they are not making recommendations to the
Secretary. These are simply fact-gathering meetings where DEP can seek
information about oil and gas