Oil and gas industry is not overregulated in West Virginia

Letter from Dave McMahon, Charleston Daily Mail, August 3, 2017

As a long-time lawyer and lobbyist for surface owners, I have always said that I like almost everybody I meet in the oil and gas industry. But like dogs that form a pack when they all get together, I find the oil and gas industry as a whole difficult to trust. It is driven by its internal competition, dynamics and profit motives.

So I must strongly disagree, based on facts, with the executive directors of the two organizations representing West Virginia drillers and their assertions in a Daily Mail Opinion column of July 27 (Anne Blankenship, Charlie Burd; Oil and gas industry getting greener).

Despite their statements, the industry is not one of the most rigorously regulated, and on its own it will not be environmentally responsible.

Starting on the federal level, the oil and gas industry is exempt from relevant parts of the Resource Conservation and Recovery Act (RCRA), the principle law that governs regulation of solid and hazardous wastes. Fracking is also exempt from the federal Safe Drinking Water Act (SDWA).

At the state level, absent imminent danger, oil and gas inspectors are required by statute to give drillers a chance to abate violations found by inspectors before a final violation is issued. I wish our State Police were required to give me a chance to slow down before giving me a ticket every time I get pulled over for speeding.

And unlike the Department of Environmental Protection’s enforcement power over any other industry in the state, the Office of Oil and Gas has no power to issue its own fines on drillers. It must go to the circuit court of the county where the problem occurred; and the fines are so low, it is often cheaper to ignore the laws than to follow them. Inspectors must have previous work experience in the industry, and there are simply not enough of them.

For all those reasons, I once told a crowd in a county impacted by Marcellus Shale drilling that to get a problem fixed with a condensation tank they should call an oil and gas inspector. The crowd broke into laughter. Again, I like the inspectors I meet, but there is an enforcement problem.

One obvious demonstration of the industry’s unregulated nature and lack of environmental responsibility is this: There are 12,664 old, non-producing wells that operators should already have plugged, including 4,693 that have been allowed to go unplugged for so long that the driller is out of business and there is no operator to plug them.

And the Marcellus Shale tsunami is driving small operators who do still own most of those wells out of business, so the problem will get much worse. And “blanket” bonding requirements for oil and gas drilling is inadequate to cover the state’s costs of plugging abandoned wells.

Another state level example is the claimed regulatory effect of the state Horizontal Well Act. It was passed in a three-day special session in 2011.

For the most part, instead of surface owner protections, the Act required the WV-DEP to do studies on surface owner impacts. The studies were done by West Virginia University. The WV-DEP reported to the Legislature that the studies showed the need “to provide for a more consistent and protective safeguard for residences in affected areas,” and “[T]o reduce potential exposures.”

The WV-DEP cannot implement those protections by rulemaking because the 625-foot setback from the center of the pad is in the statutory Act. We have introduced a bill every year since to implement the protections the studies said were needed, but the bill has never moved.

Of all the problems documented by the studies, the easiest example to explain is noise. The WVU studies found average noise levels from drilling activities dangerous for public health at the minimum setback distance at almost every pad they studied at almost every drilling stage.

The Act requires well pads and water impoundments to be designed by engineers. Yet many impoundments studied were not built according to plans. When WVU tested the soil compaction on the impoundment dikes of the 15 impoundments it studied; only 8.5 percent of the 70 tests met proper standards.

Yes, the industry is starting to recycle frack flowback water, and it is piping fresh water to well sites instead of overloading the state’s roads.

But hiring trucks and drivers, and using new water each time costs more; we say recycling and pipelines would not be developed if they were more expensive than trucks.

The industry is not rigorously regulated, and it is not on its own environmentally responsible.

I know of one well pad with nine wells that will produce a quarter billion dollars worth of gas: One pad. There is enough money at stake now to make them do it right environmentally and to make them pay surface owners what the use of their land is worth to the drillers and operators.

>>> Dave McMahon is a lawyer and a co-founder of the West Virginia Surface Owners’ Rights Organization. See also: WV-SORO web-site

University of Maryland Study (2014)

Protect public from environmental hazards of gas, oil drilling

By Suzanne Almeida, Letter to the Editor, Allentown PA Morning Call, May 12, 2016

Once again, the health and welfare of Pennsylvanians are being used as a political pawn.

Over the last five years, the Department of Environmental Protection has worked with environmental groups, gas and oil industry leaders, and Pennsylvanians from across the commonwealth to develop much needed updates to our oil and gas drilling regulations. But many lawmakers in Harrisburg are determined to stymie the implementation of these much-needed regulations, seemingly at the bidding of the oil and gas industry.

Citizens across the commonwealth should be outraged. How we regulate the oil and gas industry as we seek to protect public health and the environment is an issue that concerns us all.

On April 21, I had the opportunity on behalf of the League of Women Voters of Pennsylvania to address our state’s Independent Regulatory Review Commission and encourage it to approve proposed updates to our oil and gas rules under Pa. Code Chapter 78 and 78a.

After a day-long meeting, the commission approved the proposed rules by a vote of 3-2. Less than a week later, however, the House Environmental Resources & Energy Committee passed a resolution to kill the rule-making proposal. Luckily, advocates, including the League of Women Voters, worked hard to stop this resolution moving forward and were able to prevent r a floor vote in the House, at least for the moment.

But this is far from over. The Senate is expected to consider a bill that would have a similar effect, and the results are far from certain.

While reasonable people can disagree about some of the particulars of the regulations, there can be no doubt that the new regulations in their entirety are necessary updates to the previous regulatory scheme. As our understanding of the public health risks of fossil fuel development grows and changes, so too must the regulations that are put in place to protect us.

Consequently, one can only see political calculations in the machinations of legislators in Harrisburg around these rules.

The League of Women Voters firmly believes that, while gas and oil production is a part of our economy, we must enact policies that support the maximum protection of public health and the environment. Through our Straight Scoop on Shale project, we host the annual Shale & Public Health Conference. We also issue annual updates to our Shale Gas Extraction and Public Health Resource Guide.

At the league’s annual Shale & Public Health Conference last November, we heard from a series of speakers, including researchers from the University of Pittsburgh and Johns Hopkins University, on the harmful impacts of drilling that encroaches ever closer to our schools and homes.

Research from Evelyn Talbott of the University of Pittsburgh has found an increased number of low birth-weight babies in drilling regions, and this inauspicious start to life does not make for better outcomes later. Similarly, studies being led by Brian Schwartz of Johns Hopkins, utilizing data from the Geisinger Health System, has found an increased risk of premature births and high-risk pregnancies in women exposed to active, unconventional natural gas development.

Clearly, there is a very real risk in failing to protect the health and safety of all Pennsylvanians through effective regulation.

The citizens of the commonwealth need to realize that how we move forward on these regulations is a bellwether for how the oil and gas industry will operate in Pennsylvania. We must balance the need to protect jobs with the need to protect our water, air and land. No Pennsylvanian will be immune from the consequences of failing to effectively regulate our oil and gas industry.

Lawmakers must stop playing politics with the health and welfare of Pennsylvanians. The League of Women Voters calls on legislators across Pennsylvania to resist attempts to block the proposed oil and gas updates under Pa. Code Chapter 78 and 78a.

The health and well-being of our children, families and communities are at stake. We need our leaders to be responsive to the needs of their constituents — and we, the people, need to see to it that our voices are loud and clear. At the end of the day, the power to effect change is ours.

Suzanne Almeida is executive director of the League of Women Voters of Pennsylvania.