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West Virginia DEP Enacts Emergency Rule on Permitting

The West Virginia Department of Environmental Protection (DEP) filed an emergency rule regarding Marcellus Shale drilling on Monday, following through on Gov. Earl Ray Tomblin's executive order from July mandating regulatory changes.

The DEP filed the eight-page emergency rule, also known as Title 35-8, with the office of Secretary of State Natalie Tennant. Once the rule is approved by Tennant, the regulatory changes enshrined in it will remain in effect for 15 months, during which time the West Virginia legislature is expected to enact legislation making the changes permanent.

"We must work hard to make sure our efforts to capitalize on opportunities such as the Marcellus Shale are regulated responsibly and done in ways that protect our citizens and the environment," Tomblin said. "I believe this emergency rule is a key first step to accomplishing that goal, but there is much work to be done."

DEP spokesman Tom Aluise told NGI's Shale Daily on Tuesday that Title 35-8 would also come into effect in 42 days if Tennant took no action on the measure. He added that Title 35-8 would become a legislative rule after it goes out for public comment and is added to the DEP's agency rule package. That package would then, in turn, be voted on by the legislature in 2012.

Title 35-8 closely mirrors the regulatory changes outlined in Executive Order 4-11, which Tomblin issued on July 12 (see Shale Daily, July 14). Under Title 35-8, natural gas companies seeking well work permits must also submit to the DEP:

Title 35-8 spells out several operational rules to protect water quality. Operators using more than 210,000 gallons of water in a month will be required to record the quantity of flowback and produced water from a well and the method used for their disposal. They must also record the quantity of water transported, collection and delivery locations and the names of water hauling companies.

The rule also requires that drill cuttings and associated mud generated from the larger well sites be disposed of in a solid waste facility approved by the DEP or managed on-site in a manner otherwise approved by the DEP secretary. Well casing and cementing must meet American Petroleum Institute standards, and permit applicants must provide the public at least 30 days notice of their intention to drill.

The industry said it supported the changes.

"It appears to us that they have taken a look at several aspects of our drilling, fracking and water use processes and supplied us with rules for which to operate until the legislature chooses to make changes," Charlie Burd, executive director of the Independent Oil and Gas Association of West Virginia, told NGI's Shale Daily on Tuesday. "The emergency rule is very consistent with how [Tomblin] laid that rule out."

Asked if he thought the legislature would make Title 35-8's regulatory changes permanent, Burd said he assumed so. "But if for some reason the emergency were to expire, [the DEP] has the option to either refile an emergency rule or stand down, whichever they choose to do," he said.

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