On the surface, Senate Bill 405 is just another rules bill. But before it went to the Joint Legislative Rulemaking Committee, the bill required oil and gas well pits and impoundments to be lined with impermeable synthetic liners, to keep drilling fluids from polluting the groundwater.
But last month in the committee, the language requiring the liners was removed, and the bill that emerged allowed operators to get a waiver for the liner by conducting a soil sample.
Don Garvin of the West Virginia Environmental Council says during the meeting, committee chairman Sen. Joe Minard (D-Harrison) went out to the hallway.
“Actually, I went out into the hall when he left to see what was going on,” Garvin said. “And he was conferring with DEP and the oil and gas industry lobbyists. And they changed the rule. DEP agreed to a modification that makes lining pits with a synthetic, impermeable liner not mandatory.”
The issue isn’t that the change was made, Garvin says, but that it was made in secret. He says Minard returned to the meeting, and let the committee vote on the modified rules, without informing them that the language was changed.
Minard says the modification wasn’t a secret.
“It was very highly debated and we always felt that there is always an exception to the rule,” he said. “We had that exception in there and what Judiciary committee did was take that exception and they tightened that up, so if that exception is granted, it has to be done through a professional engineer with the consent of the Oil and Gas Division. Because in every rule there is an exception.”
But Delegate Bonnie Brown (D-Kanawha) says there was no public debate on the change. She’s the co-chair of the committee.
“And no, we love it when the agency and the stakeholders reach a compromise and agree,” Brown said. “And oftentimes they do right there in the meeting room, and they’ll say, ‘OK, we agree to that,’ and it’s done that way. But in this particular case it was done out in the hallway and we were not aware of it.”
When the bill made it to the judiciary committee, it was amended. Sen. Clark Barnes (R-Randolph) tightened it up by adding language requiring operators to get the opinion of a professional engineer before being granted a waiver for the liner.
“I wasn’t in Rulemaking and apparently, from what I understand, there were some hallway agreements that were made, possibly, between some folks that were present at that one,” Barnes said. “I’m not privy to those; I didn’t ask. I looked at the rule, I was concerned. It’s certainly becoming a bigger issue with the Marcellus drilling, of what we are doing with the wastewater. And certainly, we don’t want the wastewater to be escaping into the public water supply.”
This is the first time in years there have been changes proposed to the laws regulating the oil and gas industry, and generally the environmental community has been supportive of those changes. David McMahon of the West Virginia Surface Owners Rights Organization says as oil and gas wells get bigger, new rules are needed.
“The oil and gas rules that have been in effect are maybe good for the traditional wells that have been drilled, but this new Marcellus Shale is so huge, the techniques for drilling it are so expanded, that we think rules need to catch up a little,” he said.
The bill will be up for passage on Tuesday, with the judiciary committee’s amendment.