On July 12, 2011, West Virginia’s Governor Tomblin announced the issuance of an Executive Order (“Order”) requiring the WVDEP to immediately promulgate emergency rules to regulate the development of unconventional oil and gas in West Virginia to protect the public health, safety and welfare of the citizens of West Virginia, while underscoring the importance of oil and gas production to the economy of the State. The Executive Order focuses primarily on protection of water during withdrawal and disposal, well pad construction and reclamation, well safety plans, disclosure of chemical additives in frack fluids, disposal of drill cuttings and drilling mud, and public notice when drilling near a municipality. The substantive provisions of the Order are as follows:
(1) The WVDEP Return Fluids Memorandum dated July 30, 2010, prohibiting operators from utilizing land application of any return fluids from completion activities in the Marcellus Shale formation, is to continue in full force and effect.
(2) Disposal of return fluids into any publicly-owned wastewater treatment plant is prohibited without the prior written approval of the WVDEP.
(3) WVDEP must increase regulatory oversight of practices and equipment to ensure that no pollutants are disposed of or discharged into the water in violation of any applicable water quality standards and effluent limitations.
(4) WVDEP must promulgate emergency rules governing the following:
a. Erosion and sediment control plans for well sites disturbing an area of three acres or more of surface, excluding pipelines, gathering lines, and roads (the “Surface Disturbance Threshold”) must be certified by, and constructed under the supervision of, a registered professional engineer;
b. Applications for permits involving well sites that exceed the Surface Disturbance Threshold must be accompanied by a site construction plan certified by, and sites must be constructed under the supervision of, a registered professional engineer;
c. Applications for well work permits must provide an estimate of the volume of water that will be used for drilling, fracturing or stimulating (“fracking”) and, if the well requires water withdrawals of water in excess of 210,000 gallons during a single month (the “Water Withdrawal Threshold”), the applicant must also file a water management plan. The water management plan can be submitted on either an individual well basis or a watershed basis, and must include the following information:
(i) The type and exact location of the water source;
(ii) The anticipated volume of each withdrawal;
(iii) The anticipated months when withdrawals will be made;
(iv) The planned management and disposition of wastewater from fracking and production activities;
(v) A listing of the anticipated additives that may be combined with water for fracking the well, and upon well completion, a list of the additives actually used in fracking must be submitted as part of the completion report;
(vi) For all surface water withdrawals, the water management plan must include documentation of measures that will be taken to allow the State to manage the quantity of its waters for present and future use and enjoyment and for the protection of the environment, including: (1) the identification of the current designed and existing water uses, including any public water intakes within one mile downstream of the withdrawal location; (2) a demonstration that sufficient in-stream flow will be available immediately downstream of the point of withdrawal; and (3) the methods to be used to minimize significant adverse impact to aquatic life;
d. Applications involving well sites in excess of the Surface Disturbance Threshold must include a well-site safety plan addressing the measures to be employed for the protection of persons on the site, the general public and the environment. The plan must encompass all aspects of the operation, including the actual well work, completion, and production activities. Operators will be required to provide the safety plan to the local emergency planning committee;
e. Operators must protect the quantity and quality of water in surface and groundwater systems by:
(i) Withdrawing water by approved methods to maintain sufficient in-stream flow immediately downstream;
(ii) Casing, sealing or otherwise managing wells to keep fluids or natural gas from entering ground and surface waters;
(iii) Conducting operations using best management practices to prevent additional contributions of suspended or dissolved solids to streamflow or runoff outside the permit area; and
(iv) Registering all water supply wells with the Office of Oil and Gas and plugging all such wells;
f. Operators withdrawing more than the Water Withdrawal Threshold must:
(i) Within a limited timeframe, identify the location of water withdrawal and verify that sufficient flow exists to protect designated uses of the stream; and
(ii) Post signs at water withdrawal points.
g. Operators must implement record keeping and reporting requirements for all water used in connection with fracking activities and for all produced water from production activities:
(i) For production activities, the well operator must record the quantity of flowback water from fracking the well; the quantity of produced water; and the method of management or disposal of both the flowback and produced water;
(ii) For transportation activities, the operator must record the quantity of water transported; the collection and delivery or disposal locations; and the name of the water hauling company.
h. Applicants seeking to drill the first horizontal well on a well pad located in an area (1) within the boundaries of any municipality or (2) within a one-mile radius of any municipality, must publish public notice sufficient to apprise the public of the applicants’ intent to drill.
(5) All drill cuttings and drilling mud from regulated sites must be disposed of in an approved West Virginia solid waste facility or managed in an otherwise approved manner.
(6) The WVDEP must evaluate its overall regulatory authority over drilling activities related to horizontal wells and identify additional areas of critical regulatory concern, such as well construction and design standards, air emissions, drill cuttings management, recycling of produced fluids, and water management. Upon completing its review, the WVDEP shall exercise its emergency rulemaking authority to promulgate any additional emergency legislative rules necessary to address areas of environmental concern requiring immediate attention.
This article was authored by Steven M. Green, Jackson Kelly PLLC. For more information on the author see here.
To view the Executive Order, please click here.
Energy and Environment Monitor