We reported back in mid-January that the state Department of Environmental Protection’s new oil and gas drilling rules had advance without any weakening amendments from the industry … At least the West Virginia Environmental Council thought so, but it turns out they — and we — were wrong.
In this weekend’s Green Legislative Update, the council’s lead lobbyist explained that Sen. Joe Minard, D-Harrison, quietly worked out a deal with the WVDEP to modify the rules. The deal provides a big loophole that would allow drillers to avoid using impermeable synthetic liners for drilling pits. According to Garvin:
While the Rule-Making Review Committee was considering other rules, the Senate Chairman of the committee, Joe Minard (D-Harrison) went out in the hall and huddled together with industry lobbyists, and DEP staff.
They made a deal in the hall to change the language in the rule that requires all oil and gas well drilling pits and impoundments to use impermeable synthetic liners. They agreed to add the following language: “except those pits and impoundments authorized by the Office, based on soil analysis from the operator.”
DEP agreed to this new language as a “modification,” so a committee amendment would not need to be offered (it’s the agency’s rule, so they can simply agree to the modification).
When the full committee deliberated on the oil and gas rule, committee staff explained that the rule had been modified because a previous rule on marking gas pipelines at coalmine sites had to be combined with the new rule covering impoundments.
Committee members – and those of us in the audience – were never told that there was an additional modification, or what was in that modification.
Senator Minard then moved the rule “as modified,” and the committee voted unanimously to approve the rule.
Delegate Bonnie Brown (D-Kanawha), the House chair of the Joint Legislative Rule-Making Review Committee was not aware that a deal had been cut in the hallway, and never saw the modified language.
Senator Herb Snyder (D-Jefferson), the Senate vice-chair of the Joint Legislative Rule-Making Review Committee was not aware that a deal had been cut in the hallway, and never saw the modified language.
In fact, no one on the committee – other than Senator Minard – knew that a deal had been cut in the hallway and what the modified language was.
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It’s not so much of a surprise that such a deal was cut in the hallway. …. That’s more or less par for the course during legislative sessions. It’s often the way the game is played.
But normally members of the committee are made aware of such deals and are then prepared to support or debate the details of any proosed changes when presented and explained by staff.
The shame of this particular incident is that rules committee – not even key members of the committee, i.e. the co-chair herself and the senate vice-chair as well, were not made aware of the changes even in general terms.
I readily admit that I’m not a big fan of the legislative game in the first place, but this move appears to have been beyond the outer limits of the lowest level of rules – even for the WV Legislature.
Folks,
Erica Peterson over at WV Public Broadcasting had a story on this matter as well …
http://www.wvpubcast.org/newsarticle.aspx?id=13084
Ken.
Here’s an update from the AP:
By LAWRENCE MESSINA
Associated Press Writer
CHARLESTON, W.Va. (AP) — A measure meant to improve safety around underground pipelines and well sites has won approval from West Virginia’s Senate, but environmentalists say it was weakened by a powerful lawmaker who “was on the side of industry.”
They cried foul over last-minute a change to the bill before senators unanimously voted to send it to the House of Delegates on Thursday.
The bill, which adds to rules that govern oil and gas drilling, would require companies to mark where they’ve placed underground pipelines in mining areas. The measure comes in response to the 2006 death of a surface miner in Boone County when his bulldozer struck a gas pipeline.
Another provision aims to prevent wastewater leaks from holding ponds at well sites. Drilling for gas in underground shale requires massive amounts of water that can end up five times saltier that seawater. It can also contain dissolved solids such as sulfates and chlorides, churned up from thousands of feet beneath the ground.
The measure would require companies to install synthetic liners around these impoundments, unless testing shows that the soil around the pond can hold liquid without leaking.
Environmental lobbyists had sought to require liners in all cases. Don Garvin, legislative coordinator for the West Virginia Environmental Council, faults Sen. Joe Minard for changing the rule following a hallway meeting with industry lobbyists and state regulators.
The Harrison County Democrat had been co-chairing the joint committee that reviews regulatory rules, and added the modified language upon returning from the impromptu powwow.
“We were really happy that (the state Department of Environmental Protection) stuck to their guns through the public comment period, and it was most depressing to see a deal cut out in the hall because the committee chairman was on the side of industry,” Garvin said afterward.
Minard said the changed language reflected a compromise between industry groups and regulators.
“I was able to get industry and DEP together, and got an agreement drawn up. That is nothing different from what we do with all rules,” he said Friday. “I’m very sorry they feel that way, but it’s my job as chairman to bring all parties together.”
Delegate Bonnie Brown, Minard’s co-chair, said the committee was unaware of that specific change until after it had advanced the measure to the full Senate. But Brown also noted that the rule was amended further before Thursday’s passage, to require that an engineer sign off on the soil analysis.
James Martin, chief of DEP’s Oil & Gas Office, said the rule passed by the Senate meets his agency’s objective.
“Out interest is to protect the groundwater, the surface water,” Martin said. “That’s what we’re after, is a pit that doesn’t leak.”
The rule also requires drillers to satisfy several design, location and construction requirements when building impoundments meant to hold more than 210,000 gallons of wastewater.
——
Associated Press Staff Writer Tom Breen contributed to this report.
The rule that’s before the legislature has a number of serious flaws and it’s sad to see that it’s been further weakened. If the DEP were really interested in protecting the state’s waters a minimum distance would be required between a drill site and surface water (as in Pennsylvania) or a pit and surface water (as in Arkansas). There is no requirement in West Virginia which means that pits can actually be constructed on a spring or stream (as done at 47-079-01492 in Putnam County). In addition, West Virginia would require a minimal distance between the bottom of a pit and ground water. A huge flaw in the rule is that there is no regulation of the burial of solid waste generated during drilling a well. This waste can have high concentrations of chloride and heavy metals (arsenic and lead as at 47-039-05714 according to laboratory analysis). If the waste has been contaminated by Marcellus fracture flowback, there is a very good chance that it will also have high radium 226 and 228. Waste buried without regulation in this state is already affecting surface water and municipal water supplies as can be seen from the continuing contamination of Buckeye Creek by 47-017-05814. One further note of concern is that the oil and gas industry seems unable to satisfy the requirements of existing regulations and the DEP seems to be unable to rigidly enforce state and federal regulations as co-regulator with the EPA. Even if the proposed rule met environmental concerns it could be ignored with impunity.