July 25, 2012
Horizontal Drilling Rules Out for Public Comment ~ Public Hearing July 31 in Charleston
The West Virginia Department of Environmental Protection is currently accepting comments on its Proposed Rules Governing Horizontal Well Development (§35CSR8). Written comments may be submitted to:
DEP Public Information Office
601 57th St., S.E.
Charleston, WV, 25304
Comments may also be emailed to: DEP.Comments@wv.gov.
A public hearing on this rule is scheduled to for 6PM on July 31, 2012 in the Coopers Rock Conference Room at the address above. The comment period will end at the conclusion of the public hearing on July 31. A copy of the proposed rule is available here (scroll down to the bottom of the page)
WV-SORO is preparing to submit comments on has put together information and talking points (see below) for others wishing to comment. In general, the proposed rule does some things that are good. The comments below point out some of these, although most comments focus on the problems and shortcomings of the proposed rule. The comments are in the order in which the subject appears (or should appear) in the rule and not an indication of their importance.
Report inspectors’ findings and results of inspections to the person filing the complaint.
The findings and results of any inspection conducted in response to a citizen complaint should be reported to the person filing the complaint. This requirement should be included in the rule.
Notice to surface owners’ – Order of forms in permit application
The various documents received by surface owners pursuant to the proposed drilling of horizontal wells, over an inch thick. The reason the surface owners are receiving them is set out in the “Notice of Application of a Well Work Permit.” This document was the forty-second page of the permit application received by one surface owner! The notice to the surface owner is camouflaged by being buried among all of the technical paperwork that accompanies it. The rule should require the notice document to be in the front of whatever is sent to the surface owner or any other party receiving a notice. Otherwise, the surface owner has no idea there is something in there that the surface owner should look at to know why they are receiving a copy the documents and what possible actions they can take.
New bore hole, no notice
One sentence of this provision says that if the driller fouls up one borehole and needs to drill another one, the surface owner gets no notice. WV-SORO takes the position that the law does not allow for this. It may well be that the fouled borehole stems from a problem that the surface owner should know about.
Another sentence says the replacement borehole permit shall be identical to the original well work permit application. It may well be that the problem that the driller ran into requires a change in the casing and cementing plan that must be included with the permit. Again, the law does not permit this.
Notice to surface owners occupying surface
Where there are more than three surface owners of record, the statute and the rule allow the operator to serve notice of the permit application on only one of the surface owners, the one who’s name and address appears on the Sheriff’s tax bill. Usually that is also the person actually occupying the land, but not always. The rule should require an additional notice to be served on a residence or other occupied structure if the address on the Sheriff’s records is not the same as the location of the surface property.
Content of notices to surface owners and the public
The rule should spell out what documents are included in the notice to surface owners. Surface owners should receive a complete copy of the permit application submitted to the Office with a listing or table of contents explaining what the documents are for. A new section requiring this should be added.
A similar section should be added detailing the content and form of the public notice that appears in local newspapers. The notice should include a map showing the proposed well site in relation to the surrounding area and roads, the address of the access road intersection or nearest residence, the names of the surface owners of the land where the well site will be located and other identifying information that will make it easy for people to figure out location of the proposed well.
Water supply wells
The Horizontal Well Control Act says “All drinking water wells within [1,500] feet of a water supply well shall be flow and quality tested by the operator upon request of the drinking well owner prior to operating the supply well. The secretary shall propose legislative rules to identify appropriate methods for testing water flow and quality.”
These testing methods are not addressed in the rule. Additionally, how would a drinking well owner know to request the testing? There is no requirement in statute that they be notified about the drilling of the supply well.
Freshwater casing standards – Use of additives, risk of damage
The rule says when drilling the freshwater casing well bore, the driller can use only air, fresh water or freshwater based drilling fluids is new in West Virginia. While this sounds good, we do not know what a freshwater-based drilling fluid is. Because there is no casing that is cemented in, the drilling of the freshwater casing bore is well known to be the most common time for groundwater pollution to occur. WV-SORO opposes any additives being allowed.
Notification of cementing operations and problems encountered.
The most crucial action for the protection of ground water is the cementing of the fresh water casing. The most common violation of cementing standards by operators is to fail to wait long enough for the cement to harden before the operator starts drilling again.
The rule wisely requires the inspector to give notice of the commencement of any casing installation to the inspector. Similar notice should be given to the surface owner and owners of nearby drinking water supplies for the freshwater cement job and the production string cement job!
It is of particular importance to this protection that the surface owner know the exact time the cementing was complete, and the set up time for the cement begins to run. In addition to being notified of the commencement of the cement job the cement ticket should be part of the record of the casing at the well site and should be available not just to the inspector, but to the surface owner and other interested parties.
The rule should also include a provision for notifying surface owners and nearby water supply owners of the problems encountered during the casing and cementing of the well. Additionally, the Chief or his designee should have the authority to order testing and monitoring of nearby water supplies if warranted depending on the nature of the casing or cementing failure.
Monitoring for leaks and deterioration
In addition to annual inspections, there should be mandated monitoring for and reporting of leaks and deterioration of casings over time. The current language only requires the operator to conduct an inspection at the surface but does not specify that any type of integrity test be conducted. Additionally, the draft rule only requires “significant leakage” to be reported, however the law requires that any leakage is a violation and the rule should say that as well.
Disclosure of additives used in hydraulic fracturing
Regarding the disclosure requirements for additives used in hydraulic fracturing, the rule contains a provision that allows the operator to designate the information regarding the chemical components of the additives as confidential trade secrets. This is a major loophole! We appreciate that access to the information cannot be denied to health care professionals, however, there should be some mechanism in place for the public to challenge the trade secrets designation.
Additionally, it would be better if the rule required the operator to submit the information to both the Office of Oil and Gas and the FracFocus Chemical Disclosure Registry in order to fulfill the disclosure requirement. Although there are issues with the FracFocus website, until or unless the DEP makes significant changes to its own website, the information on the additives will be more accessible to the public on FracFocus than on paper in files at the DEP headquarters in Charleston.
Well sites and disposal of waste
The rule is inconsistent with the Horizontal Well Control Act regarding on-site disposal of drilling waste. Although state law unfortunately allows drill cuttings and other solid waste from horizontal wells to be buried on site if the surface owner consents, this consent requirement is not acknowledged in the rule. It is the position of WV-SORO that on-site burial of drilling waste should be prohibited.
Additionally, the Office of Oil and Gas is currently enforcing a memorandum prohibiting the land application of any wastewater from Marcellus Shale wells. This prohibition should be included in the rule.
Pit and impoundment liners
The rule should clearly state that no pits are exempt from the liner requirement. If open pits are to be used to store oil and gas drilling wastes, two layers of liners, a leak detection system between the liner layers and fences and other protective devices to keep out wildlife, livestock and other domestic animals should be minimum requirements. Additionally, on-site disposal of drilling pit liners and other waste materials should be prohibited. Drillers should be required to take the pit liners and the waste contained within to a facility approved for the receipt of these wastes.
However, drilling pits are not necessary and their use poses an unnecessary risk to human health and the environment, no matter how well they are constructed. There are alternatives to pits, such as closed containment (tanks) and closed-loop drilling systems, which can greatly reduce or eliminate the problems associated with pits. These alternatives can also save operators money. The Office of Oil and Gas should mandate the use of these safer alternatives rather than pits for the storage of drilling and hydraulic fracturing fluids and other drilling waste.
Variances
It is good that notice to the surface owner record is required for a variance of the requirements of this rule. It should also apply to variances from, and variances allowed in, the Erosion and Sediment Control Manual. However, variances should be limited to only those few circumstances where the operator demonstrates they are needed and alternative will meet or exceed requirements. The current draft of the rule allows variances any time the operator requests one, for any reason or no reason at all.
Water supply testing
Testing and presumption of liability should include possible pollution from the lateral/horizontal legs of the well bore, which can go 3,000, 5,000 or even 10,000 feet horizontally past thousands of old wells that need to be plugged, and others that are still producing, all with uncemented annuli between the bottom of the surface/intermediate well casing and the formation cement job. It is irresponsible not to do this where there are other gas well boreholes that penetrate the target formation, particularly if the annuli are not cemented through the formation.
Water testing parameters
It is good that a number of parameters were added to the existing five. The following should be included in addition to what has been added.
Magnesium, Lead, Strontium, and Potassium: Metals that can help determine whether water quality has been impacted by fracing fluid or brine (in addition to the other metals on the list). In addition, Potassium in particular has been proposed as a possible tracer for fracing fluid contamination.
Acrylonitrile: An ingredient in fracing fluid and therefore a possible signature of pollution from fracing fluid.
Acidity, Alkalinity, Hardness: General water chemistry parameters that help provide a general characterization of the water. In addition, some surface water quality criteria are hardness-dependent.
Gross alpha, Gross beta, Radium-226, Radium-228: Radiological parameters that can help determine whether naturally occurring radioactive materials (NORMs) have made it to the surface. The DEP’s own sampling has confirmed the presence of NORMs in wastewater from Marcellus Shale wells.
Replacement of water supplies
The rule should include procedures for requiring the operator to replace water supplies that are contaminated, diminished or interrupted by oil and gas operations as specified by state law.
The West Virginia Department of Environmental Protection is currently accepting comments on its Proposed Rules Governing Horizontal Well Development (§35CSR8). Written comments may be submitted to:
DEP Public Information Office
601 57th St., S.E.
Charleston, WV, 25304
Comments may also be emailed to: DEP.Comments@wv.gov.
A public hearing on this rule is scheduled to for 6PM on July 31, 2012 in the Coopers Rock Conference Room at the address above. The comment period will end at the conclusion of the public hearing on July 31. A copy of the proposed rule is available here (scroll down to the bottom of the page)
WV-SORO is preparing to submit comments on has put together information and talking points (see below) for others wishing to comment. In general, the proposed rule does some things that are good. The comments below point out some of these, although most comments focus on the problems and shortcomings of the proposed rule. The comments are in the order in which the subject appears (or should appear) in the rule and not an indication of their importance.
Report inspectors’ findings and results of inspections to the person filing the complaint.
The findings and results of any inspection conducted in response to a citizen complaint should be reported to the person filing the complaint. This requirement should be included in the rule.
Notice to surface owners’ – Order of forms in permit application
The various documents received by surface owners pursuant to the proposed drilling of horizontal wells, over an inch thick. The reason the surface owners are receiving them is set out in the “Notice of Application of a Well Work Permit.” This document was the forty-second page of the permit application received by one surface owner! The notice to the surface owner is camouflaged by being buried among all of the technical paperwork that accompanies it. The rule should require the notice document to be in the front of whatever is sent to the surface owner or any other party receiving a notice. Otherwise, the surface owner has no idea there is something in there that the surface owner should look at to know why they are receiving a copy the documents and what possible actions they can take.
New bore hole, no notice
One sentence of this provision says that if the driller fouls up one borehole and needs to drill another one, the surface owner gets no notice. WV-SORO takes the position that the law does not allow for this. It may well be that the fouled borehole stems from a problem that the surface owner should know about.
Another sentence says the replacement borehole permit shall be identical to the original well work permit application. It may well be that the problem that the driller ran into requires a change in the casing and cementing plan that must be included with the permit. Again, the law does not permit this.
Notice to surface owners occupying surface
Where there are more than three surface owners of record, the statute and the rule allow the operator to serve notice of the permit application on only one of the surface owners, the one who’s name and address appears on the Sheriff’s tax bill. Usually that is also the person actually occupying the land, but not always. The rule should require an additional notice to be served on a residence or other occupied structure if the address on the Sheriff’s records is not the same as the location of the surface property.
Content of notices to surface owners and the public
The rule should spell out what documents are included in the notice to surface owners. Surface owners should receive a complete copy of the permit application submitted to the Office with a listing or table of contents explaining what the documents are for. A new section requiring this should be added.
A similar section should be added detailing the content and form of the public notice that appears in local newspapers. The notice should include a map showing the proposed well site in relation to the surrounding area and roads, the address of the access road intersection or nearest residence, the names of the surface owners of the land where the well site will be located and other identifying information that will make it easy for people to figure out location of the proposed well.
Water supply wells
The Horizontal Well Control Act says “All drinking water wells within [1,500] feet of a water supply well shall be flow and quality tested by the operator upon request of the drinking well owner prior to operating the supply well. The secretary shall propose legislative rules to identify appropriate methods for testing water flow and quality.”
These testing methods are not addressed in the rule. Additionally, how would a drinking well owner know to request the testing? There is no requirement in statute that they be notified about the drilling of the supply well.
Freshwater casing standards – Use of additives, risk of damage
The rule says when drilling the freshwater casing well bore, the driller can use only air, fresh water or freshwater based drilling fluids is new in West Virginia. While this sounds good, we do not know what a freshwater-based drilling fluid is. Because there is no casing that is cemented in, the drilling of the freshwater casing bore is well known to be the most common time for groundwater pollution to occur. WV-SORO opposes any additives being allowed.
Notification of cementing operations and problems encountered.
The most crucial action for the protection of ground water is the cementing of the fresh water casing. The most common violation of cementing standards by operators is to fail to wait long enough for the cement to harden before the operator starts drilling again.
The rule wisely requires the inspector to give notice of the commencement of any casing installation to the inspector. Similar notice should be given to the surface owner and owners of nearby drinking water supplies for the freshwater cement job and the production string cement job!
It is of particular importance to this protection that the surface owner know the exact time the cementing was complete, and the set up time for the cement begins to run. In addition to being notified of the commencement of the cement job the cement ticket should be part of the record of the casing at the well site and should be available not just to the inspector, but to the surface owner and other interested parties.
The rule should also include a provision for notifying surface owners and nearby water supply owners of the problems encountered during the casing and cementing of the well. Additionally, the Chief or his designee should have the authority to order testing and monitoring of nearby water supplies if warranted depending on the nature of the casing or cementing failure.
Monitoring for leaks and deterioration
In addition to annual inspections, there should be mandated monitoring for and reporting of leaks and deterioration of casings over time. The current language only requires the operator to conduct an inspection at the surface but does not specify that any type of integrity test be conducted. Additionally, the draft rule only requires “significant leakage” to be reported, however the law requires that any leakage is a violation and the rule should say that as well.
Disclosure of additives used in hydraulic fracturing
Regarding the disclosure requirements for additives used in hydraulic fracturing, the rule contains a provision that allows the operator to designate the information regarding the chemical components of the additives as confidential trade secrets. This is a major loophole! We appreciate that access to the information cannot be denied to health care professionals, however, there should be some mechanism in place for the public to challenge the trade secrets designation.
Additionally, it would be better if the rule required the operator to submit the information to both the Office of Oil and Gas and the FracFocus Chemical Disclosure Registry in order to fulfill the disclosure requirement. Although there are issues with the FracFocus website, until or unless the DEP makes significant changes to its own website, the information on the additives will be more accessible to the public on FracFocus than on paper in files at the DEP headquarters in Charleston.
Well sites and disposal of waste
The rule is inconsistent with the Horizontal Well Control Act regarding on-site disposal of drilling waste. Although state law unfortunately allows drill cuttings and other solid waste from horizontal wells to be buried on site if the surface owner consents, this consent requirement is not acknowledged in the rule. It is the position of WV-SORO that on-site burial of drilling waste should be prohibited.
Additionally, the Office of Oil and Gas is currently enforcing a memorandum prohibiting the land application of any wastewater from Marcellus Shale wells. This prohibition should be included in the rule.
Pit and impoundment liners
The rule should clearly state that no pits are exempt from the liner requirement. If open pits are to be used to store oil and gas drilling wastes, two layers of liners, a leak detection system between the liner layers and fences and other protective devices to keep out wildlife, livestock and other domestic animals should be minimum requirements. Additionally, on-site disposal of drilling pit liners and other waste materials should be prohibited. Drillers should be required to take the pit liners and the waste contained within to a facility approved for the receipt of these wastes.
However, drilling pits are not necessary and their use poses an unnecessary risk to human health and the environment, no matter how well they are constructed. There are alternatives to pits, such as closed containment (tanks) and closed-loop drilling systems, which can greatly reduce or eliminate the problems associated with pits. These alternatives can also save operators money. The Office of Oil and Gas should mandate the use of these safer alternatives rather than pits for the storage of drilling and hydraulic fracturing fluids and other drilling waste.
Variances
It is good that notice to the surface owner record is required for a variance of the requirements of this rule. It should also apply to variances from, and variances allowed in, the Erosion and Sediment Control Manual. However, variances should be limited to only those few circumstances where the operator demonstrates they are needed and alternative will meet or exceed requirements. The current draft of the rule allows variances any time the operator requests one, for any reason or no reason at all.
Water supply testing
Testing and presumption of liability should include possible pollution from the lateral/horizontal legs of the well bore, which can go 3,000, 5,000 or even 10,000 feet horizontally past thousands of old wells that need to be plugged, and others that are still producing, all with uncemented annuli between the bottom of the surface/intermediate well casing and the formation cement job. It is irresponsible not to do this where there are other gas well boreholes that penetrate the target formation, particularly if the annuli are not cemented through the formation.
Water testing parameters
It is good that a number of parameters were added to the existing five. The following should be included in addition to what has been added.
Magnesium, Lead, Strontium, and Potassium: Metals that can help determine whether water quality has been impacted by fracing fluid or brine (in addition to the other metals on the list). In addition, Potassium in particular has been proposed as a possible tracer for fracing fluid contamination.
Acrylonitrile: An ingredient in fracing fluid and therefore a possible signature of pollution from fracing fluid.
Acidity, Alkalinity, Hardness: General water chemistry parameters that help provide a general characterization of the water. In addition, some surface water quality criteria are hardness-dependent.
Gross alpha, Gross beta, Radium-226, Radium-228: Radiological parameters that can help determine whether naturally occurring radioactive materials (NORMs) have made it to the surface. The DEP’s own sampling has confirmed the presence of NORMs in wastewater from Marcellus Shale wells.
Replacement of water supplies
The rule should include procedures for requiring the operator to replace water supplies that are contaminated, diminished or interrupted by oil and gas operations as specified by state law.
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