West Virginia Governor Earl Ray Tomblin today issued an Executive Order ("Order") requiring the West Virginia Department of Environmental Protection ("WVDEP") to develop emergency rules regarding the potential environmental impacts of Marcellus shale exploration. The Order affirmed the Governor's previous statements supporting the safe and sound development of the Marcellus shale in West Virginia
With regard to the regulatory requirements to be developed, the scope of the emergency rule-making to be undertaken by the WVDEP includes requirements that oil and gas operators:
- Submit water management plans on either an individual well or water shed basis if a well is anticipated to require a water withdrawal in excess of 210,000 gallons from waters of the state for purposes of fracturing or stimulating;
- Divulge the anticipated and actual chemical additives used in the fracturing of the well;
- Obtain the services of a registered professional engineer to draft erosion and sediment control plans and well pad construction plans which will be certified and constructed under the supervision of a registered professional engineer for sites in excess of three acres of land, not including pipelines, gathering lines, and roads; and
- Submit a well site safety plan with all applications which will disturb in excess of three acres of land, not including pipelines, gathering lines, and roads.
Many of the other requirements set forth in the order, including a continued ban on the land application of Marcellus related wastewater, the disallowance of any oil and gas wastewater being accepted by a POTW for treatment and disposal without approval of the WVDEP, and the submittal of specific water withdrawal information and wastewater handling information, including the location, time, and amount of water to be withdrawn to support a given well project and the manner in which wastewater will be handled and disposed of, are consistent with either existing policies which have already been enacted by the WVDEP,, including the use of WVDEP's water management tool already available on the agency?s internet home page, or existing statutes governing waste handling.
Additional reporting requirements regarding the handling and transport of wastewater are also included in the order and are similar to legislation introduced by the WVDEP during the 2011 legislative session. Further, the order addresses the permitting of horizontal wells within certain distances of municipal entities and requires public notice of these wells, but does not limit the ability of oil and gas operators to operate in these areas. Finally the order requires the WVDEP to review its own regulatory programs to address additional areas of need with regard to environmental controls, including in the area of drill cuttings which must be disposed of in permitted solid waste facilities unless otherwise approved by the WVDEP.
The order importantly does not in any way outwardly or imply the possibility of a moratorium or ban on Marcellus shale exploration and in fact supports the continued safe development of the Marcellus shale in West Virginia.
A copy of the Executive Order can be found by CLICKING HERE