October 7, 2011

Fall Edition of Surface Owners' News Available
The Fall 2011 edition of Surface Owners' News is now available at www.wvsoro.org.

While much of the legislative news will be familiar to folks on our e-list, this edition of also contains articles on two pending court cases that could give landowners more leverage in there dealings with natural gas companies. We've also included more information on the EPA's efforts to clean up drilling related air pollution and we a call for any information you might have on how drilling and leasing are affecting property values and mortgage financing.  We wrap up this edition with some information on seismic (geophysical) surveys planned for Preston County.  We're sure there are things that we missed or did have room to include in this issue, and we welcome suggestions and submissions. Please send your community news, upcoming events or other items to julie@wvsoro.org for inclusion in future newsletters or e-mail updates.

Click here to read the newsletter. 

DEP Accepting Comments on Horizontal Drilling Rules
In July, Senator President Earl Ray Tomblin, acting as Governor, signed an executive order directing the Department of Environmental Protection (DEP) to develop rules to regulate Marcellus Shale gas drilling.  The plan is a positive first step, but is no substitute for legislative action which is needed to address the problems surface owners face in their dealings with the drillers.

As part of the rule-making process, the DEP is accepting comments on the rule through October 11 and will hold a public hearing at 6 PM  that day in the Coopers Rock Conference Room at the DEP Headquarters located at 601 57th Street SE in Charleston

Any person wishing to comment on the proposed rule is invited to be present or represented at the hearing.  Written comments may be submitted to:

Public Information Office
WV Department of Environmental Protection
601 57th Street SE
Charleston, WV  25304

Comments may also be e-mailed to dep.comments@wv.gov.

For a copy of the proposed rule visit http://www.dep.wv.gov/oil-and-gas/Pages/default.aspx

From the perspective of WV-SORO and allied organizations, the emergency rules are inadequate to ensure safe, responsible development of the Marcellus Shale.

Talking Points on the Rule:

• The rules are of limited applicability and apply only to horizontal wells.  The rule does not apply to vertical Marcellus Shale wells (like the one shown on the WV-SORO website) that use the amount of water and disturb the amount of land that the rule would otherwise cover and there are no improvements for the many conventional wells that are still drilled.
• The rule does not give surface owners notice of plans to drill the wells until the permit is actually filed, and then there is only 15 days to file comments, no hearing on the permit application, and no power for the State to help a surface owner whose future home site is now going to be a well site.
• The rule continues to allow gas wells to be drilled within 200 feet of peoples’ homes. This close proximity is of particular concern for Marcellus Shale operations, given their duration, the air, noise, light and other pollution from the sites. In addition, there is the potential for more serious accidents such as the fires and explosions that occurred last year in the Northern Panhandle.
• The DEP’s press release was misleading when it said that the rule, “stipulates that all drill cuttings and drilling mud be disposed of in an approved solid waste facility.”  In Section 4.3 the Rule also states, “or managed on-site in a manner otherwise approved by the Secretary,” and there is no indication of what the Secretary may approve.  A scientific study of the problems associated with on-site burial of pit waste from a conventional well drilled in Fernow Experimental Forest documented seeps and leaching into surrounding soils.  Marcellus Shale wells contain more potential contaminates (including naturally occurring radioactive materials (NORMs) than conventional wells and at much greater volumes.
• The requirement that an engineer must design the well pad if it is more than 3 acres is a good thing.  However, having an engineer supervise the construction and reclamation would help ensure that soil erosion and sediment control plans are followed since there are too few inspectors to  oversee these activities.  The engineering requirement does not apply to the well access roads or pipelines, which are frequently more of a problem than the well sites themselves.
• Many of the provisions related to the water management plans had already been implemented in practice under the Manchin administration, although the requirement that operators disclose the chemicals added to water used to fracturing or stimulate a well is new and appreciated. 
• Many of the new casing and cementing requirements are too vague.  The rule sets standards that would allow the State to cite the driller if something went wrong, as opposed to standards that could prevent problems from occurring in the first place. For example, the rules state that all cement used must "secure the casing to the well bore..."  but do not require the driller to run a bond log to make sure that it actually does.
• With regard to drinking water supplies, there are no expanded set backs or testing parameters included in the rule.  Currently drillers are required to test for constituents in drilling muds and fluids, but not for chemicals or chemical compounds commonly used in hydraulic fracturing.  And there is no clarification of replacement requirements for damaged or lost groundwater or surface water supplies. 
• Nothing is done to even study the air quality from flaring methane into the atmosphere and the many releases of methane, nitrogen oxide (NOx), and volatile organic compounds (VOCs) from well sites and compressor stations.
• The rule insults those living in rural areas by only requiring published notice of the siting of these industrial drill sites if a well will be drilled inside the city limits.  The rule would not even have required public notice of the controversial well drilled just outside the city limits of Morgantown.

More information on the emergency rules is available here and here. 

Marcellus Committee Meets October 13 & 14
The Legislature's Select Committee on Marcellus Shale will be reconvening on October 12th and 13th and hopes to complete its work at that time. There are a number of critical protections for surface owners missing from the bill and at least four pending amendments to add these needed protections.  These include amendments dealing with:

• Surface Use and Compensation – Would require drillers to negotiate a surface use and compensation agreement with landowners. If no agreement can be reached, the driller must post a surety bond of $25,000 to protect the landowner in case of damage from drilling operations.
• Well Location Restrictions - Keeping wells and well pads a safe distance (1,000 feet) from homes, water wells, springs, and buildings used to house or shelter livestock.
• Protection of Water Supplies - Expanding the driller's presumptive liability for water contamination from 1,000 feet to 2,500 feet and clarifying water replacement requirements.
• Casing and Cement Requirements - Bolstering casing and cementing requirements. Groundwater is at risk when casing and cementing are not adequate or are not done properly.