Doddridge County Stream

NOTE:  The following article by Diane Pitcock was published this week in the Doddridge County News, West Union, WV.

Marcellus at Your Door in Doddridge County

 >>>  Standing Firm Against Intimidation

This Friday (today), the Doddridge County Commissioners will act in the capacity of an appeals board, when addressing the unresolved matter of the revoked flood plain permit previously issued to EQT to drill 12 Marcellus wells on Joye Huff’s meadow. This outcome of this appeals process should be of interest to every resident of this county.

For those unfamiliar with the current controversy involving EQT’s desire to drill in a flood plain, here is a synopsis of what appears to be a controversial and “sticky situation” for the county commission to try to resolve……

EQT holds an active mineral lease which gives them the right to drill on a tract of land which was originally leased back in 1890. It includes Joye Huff’s 640 acre farm in Groves Summers, which is only a part of the greater acreage on the original tract of land which was leased for minerals back in 1890.

EQT selected the meadow on the Huff Farm as their location of choice to put 12 Marcellus wells. It is Joye Huff’s only meadow of her entire farm and she farms it. But aside from that, the meadow is in a recorded flood plain/floodway.

Back in November, 2011, EQT went to the county flood plain coordinator, Jerry Evans, with their documents in order to obtain a county permit to drill in the meadow. EQT’s documentation provided to Evans stated that the meadow was NOT in a flood plain. Evans signed off on it and issued a permit to allow EQT to drill the meadow. The site was never visited by the county flood plain coordinator prior to signing the permit.

The residents of the Groves Summers community know that this meadow is indeed in a recorded flood plain and at least partially in a flood way. They have experienced firsthand the flooding of the meadow and resulting FEMA federal disaster assistance in past years. Realizing that it was a significant error on the county flood plain coordinator’s part to have issued EQT a permit to drill there, several neighbors and the property owner of the drill site brought this to the attention of the County Commission. This was done during a commission meeting in April, 2012.

The county commission realized that a mistake had been made in issuing the county permit to EQT to drill the meadow. The commissioners instructed Jerry Evans, County Flood Plain Coordinator, to act on the situation. Subsequently the permit to drill in the meadow was revoked by Evans.

The commission was well intended by being responsive to the residents who brought the flood plain situation to their attention. However, the commission unintentionally handled the revocation improperly. They did not provide EQT with proper notice that they intended to pull the permit in order for EQT to have “due process” and be heard, before the revocation of the permit. (Or so EQT claims. However the revocation of a permit that was invalid to begin with, should have no standing before the court. Due process does not apply to invalid actions and is being challenged.)

Nevertheless, EQT filed an injunction to demand the return of their permit to drill in the meadow. In effect, they indicated their intent to sue the County Commission, if they don’t get their permit back.

The county commission, now under the advisement of their attorney, subsequently went back to correct their “process error” they had committed when they had instructed Evans to revoke EQT’s permit without first informing EQT of their intent. This time the commission went through the proper channels and there was also a subsequent hearing addressing the injunction. During this hearing, the circuit court judge heard EQT’s argument, and that of the attorney’s intervening for the landowner, and the commissioners’ attorney as well. The case was remanded back to the County Commission to act upon it in their official capacity of a Flood Plain Permit Appeals Board, and to do so before the judge will address the injunction filed by EQT against the County Commission.

In addition, the landowner was given the opportunity to obtain the services of an independent engineering firm to review, validate, or contradict the engineering documents that were used by EQT when seeking their permit from Jerry Evans, who was our Doddridge County Flood Plain Coordinator who issued the permit to EQT back in November.

Overwhelmed yet with too many details? It’s all part of the usual “legalities” that come into play in these court situations and often cloud the issues that need to be addressed.

Bottom line is that the ball is now in the County Commission’s court, so to speak. Their “appeals court” role they will assume this Friday. This is when they must decide whether to reinstate the revoked permit for EQT, or sustain the current revocation of the permit. After that hurdle it will go back to the circuit court to continue.

It would seem as if a no-win situation for the County Commission. On the one hand, if they rule to keep the permit revoked as it currently stands, they can probably expect EQT to continue with the injunction against them and the lawsuit. They want that meadow! And if the commission yields to that kind of pressure, and gives EQT a permit to drill the meadow, the commission will have violated their own county flood plain ordinance and they can expect that they will have to answer to the residents of that community who will be placed in harm’s way if the meadow is drilled.

A few things that should be considered by the commission and perhaps some questions they should be asking themselves and EQT……..

1. The commissioners were elected to serve and protect the citizens of this county, not serve the drilling industry. The meadow is in a recorded flood plain/flood way. What does our County Flood Plain Ordinance say about construction in a flood plain/floodway? It states only if there are no other alternative locations should construction be done in a flood plain/flood way. The Huff farm has 640 acres of “alternative location” for EQT to find another place to plop those 12 Marcellus wells. In addition, the leased track that EQT holds encompasses adjoining parcels besides the Huff farm, so even more acreage to possibly place those wells instead of locating them on the flood plain meadow. They are currently proposing to use the meadow and build up the meadow with 60,000 cubic feet of fill, with the edge of the well pad about 20 feet from the stream. Gee, where will all that diverted water go when the meadow floods as it has historically done so every few years?

2. Is the commission responsible for the safety of residents or responsible for catering to the needs of EQT for their “convenience” in drilling in the desired meadow? It is flat, with a long stretch of road frontage for easy access for their drilling equipment and trucks. An easier way for them to get to their minerals, rather than going elsewhere on that huge tract of leased land they hold that ISN’T in the flood plain.

Ms. Huff’s meadow appears to be a very desirable and coveted location for the driller. Enough so, that EQT apparently won’t back down and they have brought in their heavy hitter lawyers to fight both the landowner and the county commission.

(Guess EQT will no longer be giving out those really cool flashing L.E.D. yo-yo’s, sunscreen pens, tote bags, and cheese cubes they handed out to us as freebies at their community public relations meeting last year at the county park? No more Mr. Nice Guy to us landowners who want to preserve our property values, and our safety, as best we can? )

NOWHERE does it say that the county commission is here to serve the drillers and make it easy for them at the expense of the landowners’ property, and certainly NOT at the expense of the county residents’ safety! Remember, the commission is here to serve and protect the county citizens, NOT the drilling industry!

3. EQT, when seeking the permit for drilling in the meadow, presented their engineering study as evidence that the proposed site was not in a flood plain. An assessment done of their engineering study revealed some interesting things.

EQT’s engineering firm used older, outdated software, a BETA or experimental version. Check out the website for EQT’s chosen engineer: Navitus…. “energy support, it’s all we do.”

http://navituseng.com/ Does that suggest an UNBIASED independent engineering firm did the flood plain study for EQT? Was the software used for EQT’s study an older version using topography and input from 2003?

If so, shouldn’t this be more current? Did anyone from Navitus Engineering actually visit the site? Wouldn’t it be prudent to have information more current than those from 2003 software?

4. Did EQT fill out the application form for the county permit and Jerry Evans then sign it based on what info they told him? Was there a site visit done referring to current flood plain maps on record? Was an informed decision made, and did the company provide all the facts?

5. The Doddridge Flood Plain Ordinance states that “any developer who plans activity in a flood zone that will encompass 2 or more acres is required to delineate the floodplain.” Did EQT do this before coming to the county with their application? According to the landowner, the delineation was never done prior to the permit application. And why is this process necessary? Because the ordinance demands that NO fill will be placed inside a floodway. Thus it is important for EQT to have known just where the floodway is located. Perhaps a few thousand dollars spent at the beginning is better than wasting hundreds of thousands on improper activities?

6. The WV DEP Office of Oil and Gas states in their permit application that a driller is responsible for obtaining the necessary local permits, and identifying the actual flood plain, and obtaining any permits, variances, etc..

WV DEP OOG went ahead and issued their agency’s permits to EQT even though EQT had not yet obtained the local county permits to drill in the meadow. In the DEP’s permit application package, there is an acknowledgement section with signature requirement in which it states “the applicant acknowledges that any Office of Oil and Gas permit in no way overrides, replaces, or nullifies the need for other permits/approvals that may be necessary, and further affirms that all needed permits/approvals should be acquired from the appropriate authority before the affected activity is initiated.”

Did EQT go through FEMA, Army Corps of Engineers, DNR, US Fish and Wildlife and any other agency for necessary approvals when required and did they do so before applying with Doddridge County? Does the County Commission have evidence that they did? Hopefully the commission will verify all this was done by EQT. Wasn’t FEMA the one who initially brought all this to the attention of the commission because something may have been amiss?

7. How much of the alleged expenses that EQT is claiming as “damages” they incurred (assuming they don’t get their permit back) can actually be attributed to the actual costs they incurred as result of not getting the permit? And how much of those dollars claimed were actually monies that had to be spent by them, whether they were approved for the permit or not? Typically, those pre-permit costs incurred by companies in preparing for a permit application must be “eaten” by the companies who apply, even when they are subsequently turned down for permits. The burden of proof is on EQT to prove that those alleged monetary damages were a result of being DENIED the permit, and not stemming from expenses that must be incurred in order to apply for the permit! The commission would be prudent to look into that!

8. Does the suit by EQT claim that they already have loss of opportunity for revenue from the gas on a daily basis? If so, how can they be losing natural gas revenue already, if in fact, the pipeline infrastructure to pump that gas hasn’t even been built yet? Could this be intimidation by suggesting that they are losing money every day that the permit is denied?

Hopefully, the commissioners will be diligent in sorting out the facts from the threats and not allow themselves to be intimidated by a possible lawsuit filed by EQT if they don’t get that coveted meadow.

Bottom line is that it would seem that if the commission simply follows and applies the law as it appears in the county flood plain ordinance, and renders their decision based on being in compliance with their own flood plain ordinance, they will have little to worry about as repercussion to their action.

If there is litigation against them as result of their decision on the permit, the commission needs to realize that the burden of proof for actual damages incurred must be attributed to the denial of the permit and is the responsibility of EQT to prove rather than to suggest.

Hopefully, residents of the county will follow this case carefully as it unfolds. What has happened on Ms. Huff’s farm could very well happen to many others in the county who have old mineral leases on their lands. We should expect nothing less than to have our local and state government, their agencies ……and the drilling companies follow the rule of law. The Marcellus drilling frenzy is a whole new playing field and brings lots of challenges to our county and state. We should not allow ourselves to be targeted as a population to be taken advantage of, simply because it is assumed that we are ignorant of our rights and of laws that are in place to protect us.

>>> Diane Pitcock is the Program Administrator for the WV Host Farms Program which links WV landowners with the environmental community to study the impacts of Marcellus shale gas development.  Contact: wvhostfarms@yahoo.com, www.wvhostfarms.org   <<<

Abandoned Well

EDITORIAL, Morgantown Dominion Post, September 14, 2012

A Groundswell of Skepticism – the report that spotlights abandoned oil and gas wells casts a  shadow on the lack of enforcement.

In the beginning, we probably thought: What could ever go wrong for the oil and gas industry? But occasionally, a report comes along that leads us to think nothing can go right. Last year, the Department of Environmental Protection (DEP) released its State of the Environment report. As a rule, there are few surprises in these reports, but we could not help but note that report described 13,000 abandoned oil and gas wells in our state, defined as a dry hole or a well that’s been idle for a year.

These abandoned wells were said to pose minimal risks to the public, assuming they were built properly. And the DEP was focused on those that could cause problems, such as leaking sulfur or crude oil. The DEP secretary noted then that 13,000 of anything sounds like a large number. And he’s right, it does. Especially, if you’re the one coping with the fallout and costs of such wells. That report also noted the state had reclaimed or plugged about 250 such wells since 2004 at a cost of $6 million. Nobody said it was going to be cheap. But nobody said the state’s taxpayers were going to be footing the bill, either.

Then this week another report comes along. This one from legislative auditors. And that 13,000 figure? It’s still there. All right, so we’ll just have to accept that. However, it’s the gush of details that emerged with that figure we find troubling. For instance, the DEP’s Office of Oil and Gas cannot identify who last operated 5,800 of those wells, while the operators of another 4,700 of them have not indicated they plan to plug them or restart them within 10 years. And they’re in everyone’s backyard. All 55 counties.

Mind you, all of this is illegal. Operators are required to cap a well that’s dry or unused for 12 consecutive months, unless they can demonstrate a future use for the well. So, how many wells are exempt as a result of showing a future use? Would you believe 34?

And there’s more. The database used to track the more than 110,000 state wells doesn’t flag the ones that don’t post production numbers every 12 months? Inspectors don’t even visit these abandoned wells, and a random sampling of about 50 percent of them found that they had been inactive for five years, while 43 percent were unused for at least 10 years.

The analysts who prepared this audit also took exception with the DEP secretary on the dangers of these wells. They found collectively, these abandoned sites could be a significant hazard to public health and the environment. Is the sky falling? No, but the risks these abandoned wells pose on the ground is rising.

WV-DEP Office Building

Horizontal Drilling Rules Open for Public Comment  & Hearing July 31st

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 6 PM 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 and 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. 

Prepared by: Julie Archer, WV Surface Owners’ Rights Organization, 1500 Dixie Street, Charleston, WV 25311

(304) 346-5891, (304) 346-8981 FAX,   Web site: www.wvsoro.org

Upshur County Drill Site

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WV Department of Environmental Protection: June 8, 2012 =========================================
The DEP is seeking applicants for inspectors in the Office of Oil and Gas to serve in the northern part of the state.

Inspectors are responsible for environmental regulatory oversight of oil and gas well drilling and production operations.

Additional inspector positions were created with the passage of the Horizontal Well Act in December.

Although several applicants expressed interest in the positions when they were originally posted, finding people who meet the qualifications required for the position has limited the field of candidates.

“We are in a very challenging position,” said James Martin, chief of the office of Oil and Gas for the DEP.  “We have jobs that need to be done, but we don’t have enough candidates for them because of the requirements and we are limited in the salary we can offer.”

The starting salary for an inspector is $35,000 per year.  That amount is set by statue, so the agency cannot negotiate anything higher with the candidate.

One of the requirements for an inspector includes two years of industry experience. However, one year of experience would be acceptable if the applicant meets one of several other criteria that can serve as a substitute.

For more information or to apply online, visit the Division of Personnel’s website at:
http://agency.governmentjobs.com/wv/default.cfm

The WV-DEP says permits for horizontal gas wells are coming in faster than they’re being processed. Secretary Randy Huffman said he has a backlog of more than 250 permits, but hopes to have it under control by the end of the summer.

The DEP has gotten more money for staff, but Huffman said he’s having trouble hiring and has added only one employee to the permitting team. Huffman said one new hire quit after less than a month and another quit before the first day. Meanwhile, 20 veteran inspectors have filed grievances over the new hiring push, arguing that the DEP wrongly created two sets of pay, hiring qualifications and job requirements.

Also, EQT of Pittsburgh, PA,  is suing Doddridge County officials for revoking a flood plain permit after it spent $300,000 on the permitting process. EQT is seeking an injunction in circuit court so it can proceed with plans for 12 wells, according to  The Associated Press.

WDTV-TV reported that the permit was revoked after the county’s flood plain manager realized homes and livestock were vulnerable.EQT said the county and the state Department of Environmental Protection granted permits, and the manager had no authority to revoke them. The manager also sits on the County Commission.

Landowner Joye Huff called EQT’s actions rude, stubborn and intimidating. Huff said the Federal Emergency Management Agency pointed out the potential problems and the flood plain manager had no choice but to withdraw the permit.