West Virginia Department of Environmental Protection Proposes Revisions to Oil and Gas Permit Rule

West Virginia Department of Environmental Protection is proposing revisions to the oil and gas permit rule, W. V. Code St. R. §35-4-1 et seq., relating to gas operations.  These revisions will affect the common industry practice of hydraulic fracturing (high pressure injection of water, sand, and chemicals through deep, horizontally drilled wells to break apart the rock and release the natural gas), but focuses on the management of surface impoundments.  The revisions will amend the rules dealing with the storage of necessary process water and fluids.  It is designed to protect ground and surface water from the constituents contained in the stored process water.  These rule changes may increase the cost associated with hydraulic fracturing. 

The definitions have been revised to create a distinction between “wastewater pits” and “freshwater impoundments” as opposed to the current general term “pits.”  More importantly, both “wastewater pits” and “freshwater impoundments” will require the use of synthetic liners (the current rule contains no such requirement and, if suitable, soil is an acceptable liner).   

Additionally, these revisions shall include the addition of a new rule section regulating the construction of pits and impoundments with capacity of greater than five thousand (5,000) barrels. See proposed W. V. Code St. R. §35-4-21.  This new section is designed to regulate large operations and requires: 1) agency notice prior to construction of wastewater pits and freshwater impoundments; 2) professional engineer must design, inspect, and certify the construction of both wastewater pits and freshwater impoundments; and, 3) some specific design criteria.   

This is likely only the beginning of new regulations targeting hydraulic fracturing.  Due to the Court’s decision in Leaf v. EPA, 118 F.3d 1467, requiring EPA oversight of the Alabama program, under the Underground Injection Control Program (“UIC”), EPA only regulates hydraulic fracturing in the State of Alabama.  The 2005 Energy Policy Act excludes hydraulic fracturing from the Safe Drinking Water Act legislation. 

Currently, both EPA and Congress are being pressured, by environmental groups, to deal with the environmental effects of hydraulic fracturing and greater federal oversight is expected in the near future. 

This article was authored by Laura G. Swingle, Jackson Kelly PLLC. For more information on the author see here.