Marcellus Regulation Ordered
DEP to issue emergency rules
Morgantown Dominion Post
13 July 2011
By David Beard
CHARLESTON — Marcellus drilling regulation got a kick-start Tuesday
afternoon.
Acting Gov. Earl Ray Tomblin issued an executive order directing the
Department of Environmental Protection (DEP) to put in place — the
official word is promulgate — emergency rules to govern Marcellus shale
drilling activities. These will be in effect until the Legislature
develops comprehensive legislation.
Acting Senate President Jeff Kessler, D-Marshall, explained that
emergency agency rules take effect immediately upon adoption, without
Legislative OK, but are temporary. They expire 15 months after adoption.
Tomblin made his announcement at a press conference packed with
legislators, public officials, gas industry representatives and
interested residents.
“I believe the requirements I set forth will responsibly regulate
Marcellus shale drilling,” he said, “provide regulatory certainty in
our burgeoning natural gas industry, protect our citizens and our
environment today and in the future, create good-paying jobs in our
natural gas and manufacturing industries, and ensure that our partners
in the private sector responsibly develop an abundant energy source for
our state and our nation.”
Tomblin acknowledged the flood of comments regarding Marcellus
regulation that poured into his office from concerned residents and
groups.
“I’ve heard you and I think you will be pleased with my directions,” he
said. Environmental protection, thousands of jobs and the
revitalization of the state’s chemical and manufacturing sectors all
hinge on responsible development of Marcellus shale.
“Regulatory uncertainty like that created by the EPA in our coal
industry simply is not an option that I’m willing to consider,” he said.
Opening the floor to questions, Tomblin and DEP Secretary Randy Huffman
responded to several from The Dominion Post.
There is no specific deadline to draft and enact the rules, Huffman
said, but he’d prefer “sooner rather than later — probably within the
next 30 days.”
Will existing operations be grandfathered? Huffman said they would
definitely affect new permits, but for existing ones, “we haven’t
thought that through yet.” It would be difficult to make them
retroactive, he said.
Tomblin agreed, equating retroactive regulation to the Environmental
Protection Agency’s revoking of the Spruce Mine permit after it had
been granted.
Will the rules affect the timing of the much-discussed special session
for a Marcellus bill suggested for early August?
“Obviously it’s a very complicated issue,” Tomblin said of tackling a
new industry. The rules are a first step, taking on important
environmental safety issues. He’s still willing to call a session as
soon as the Legislature has a bill ready.
Asked if the state has enough inspectors to enforce the rules, Tomblin
reminded the audience he asked the Legislature during the final days of
the session to find $2 million in the general fund to pay for more
inspectors. That didn’t happen, so the DEP will have to get by with
what it has. Huffman added that the DEP will adjust and modify its
program as it goes forward.
Legislator and industry responses
Monongalia County Delegate Barbara Evans Fleischauer, part of the
10-member Marcellus select committee working on a new bill, attended
and said, “I was glad to hear it.” She hadn’t seen the order and would
reserve judgment on the details, but “we needed something as soon as
possible.”
Delegate Mike Manypenny, D-Taylor, worked closely with Fleischauer on
environmental elements of the House bill last session. He called the
order a “step in the right direction. ... It shows that a few
legislators and a movement of the people can make policy changes.”
Manypenny and Fleischauer were instrumental in drafting a letter,
signed by 21 delegates, calling for a moratorium on new permits and
Marcellus regulation that failed. “I think he listened to that letter
and the people,” Manypenny said.
Steve Downey, vice president of business development for EnerVest, a
Texasbased oil and gas developer, and treasurer of the Independent Oil
and Gas Association of West Virginia, attended and was pleased with
Tomblin’s actions.
Each horizontal well costs $7 million to $9 million, and means jobs and
tax revenues. “Regulatory certainty is very important,” he said.
Kessler stood at the front with other legisaltors. Afterward, he told
The Dominion Post, “I think it was much needed. ... I appreciate the
governor’s leadership” in taking this first step. Among the provisions
is one he’s publicly supported — closing the so-called “Haliburton
loophole” exempting disclosure of fracking chemicals from the clean
Water Act. Tomblin’s order requires disclosure.
The announcement also gives the Legislature a little breathing room to
develop a bill, he said. A bill could be a matter of a few months,
instead of the days or weeks under the speculated Aug. 1 special
session.
House Speaker Rick Thompson had a prior commitment and was unable to
attend the announcement, but issued a statement:
“I believe Acting Governor Tomblin is being prudent in giving the DEP
the ability to quickly put in place muchneeded temporary regulations
for Marcellus Shale drilling. 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.”
REGULATORY PROVISIONS
Acting Gov. Earl Ray Tomblin’s executive order includes these
regulatory provisions: Fracking additives must be disclosed. Plans for
surface disturbances exceeding 3 acres must be certified by an
engineer. Operators planning to use more than 210,000 gallons of water
a month must develop and file a water management plan for extraction
and for disposal or recycling of the water.
- Stream flow levels must be protected.
- Water withdrawal sites must be identified with signs.
- Operators must provide well-site safety plans to protect
workers and the public.
- Operators must provide adequate public notice for permits
within municipal boundaries.
- The DEP must review its overall regulatory authority over
horizontal drilling and fracking activities.