The proposed update to Virginia’s gas drilling regulation, titled "4VAC25-150. Virginia Gas and Oil Regulation (amending 4VAC25-150-10, 4VAC25-150-30, 4VAC25-150-80, 4VAC25-150-100, 4VAC25-150-110, 4VAC25-150-160, 4VAC25-150-280, 4VAC25-150-300, 4VAC25-150-340, 4VAC25-150-360, 4VAC25-150-610; adding 4VAC25-150-95, 4VAC25-150-365, 4VAC25-150-535, 4VAC25-150-615", is woefully inadequate.  It addresses only a few narrow issues and falls far short of what is needed to protect Virginians from the serious risks posed by new forms of shale gas drilling.  In fact, the regulation raises more questions than it answers.  DMME must undertake a comprehensive review of Virginia’s regulations in light of extensive new scientific and medical information about the risks of modern fracking to air, water, land and human health.  The current proposal does not offer even lip-service to the many, extensive, and horrific threats such information contains or may contain.  Only after such a review, the results of which should be made public, should DMME move forward with a proposed regulation.

A few examples follow of issues the Proposed Regulation should address and set enforceable requirements for, but does not:

•             Prohibiting open fracking waste storage pits and establishing standards for such storage pits.

•             Prohibiting disposal of fracking wastewater by spreading it on agricultural or forest land or any public land, by dumping it into rivers, streams, and other waterways, and even by forcibly injecting or otherwise putting it into the earth.

•             Establishing setbacks from gas wells and infrastructure to protect springs, rivers, lakes, streams, flood plains, parks, playgrounds, schools and other important natural and community resources.

•             Requiring drilling companies to have DMME approve (in advance of DMME approval of application) plans for thoroughly and safely testing, labeling, transporting, and disposing of drilling waste.  Drilling waste must not simply be buried at the well site, as the draft regulation would allow in western Virginia.  Using injection waste wells should not be allowed in seismically active parts of Virginia due to earthquake risks or in geologically unstable or unpredictable areas.

•             Identifying and prohibiting serious air pollution risks, including methane leaks, from wells and related infrastructure.

•             Prohibiting fracking in areas of Virginia with karst or similarly unstable or vulnerable topography.  The fact that DMME focuses its proposed regulation on only 2 areas of Virginia does not mean that drilling companies won't apply to drill in other others of the State.  It is unclear whether this regulation would even apply to areas other than the counties in southwest and Tidewater that the regulation lists.

•             The validity and appropriateness of using Fracfocus as the repository database for the vitally important information about the specific chemicals that drilling companies use in fracking operations.  Despite the fact that several states rely on Fracfocus, it is quite unclear whether and how this data is maintained and verified by either the Groundwater Protection Council or the Interstate Compact Oil and Gas Commission or how thorough and reliable are the data that the drilling companies provide.  Fracfocus appears to "take the word" of the drilling companies with no independent verification.  Serious questions exist about the transparency and neutrality/industry independence of these two organizations.  Further, the proposed regulation does not offer an alternative repository as a back-up to Fracfocus.  Also, the data is given only to first responders in the event of an emergency, when it will clearly be needed quickly by various other entities, such as the Department of Health and the Department of Environmental Quality to name but two, not to mention the public.

•             Establishing definitive legal and compensatory consequences in the event of non-compliance of these regulations.  Even if the DMME will be monitoring drilling company operations to ensure they comply with what few requirements this regulation places on them, and that is not clear, there is no indication of what legal authority the DMME has to issue citations, halt operations, or prosecute/fine violators.  Nor is it clear that an applicant that has had violations in connection with a prior application will be either banned from further drilling or subject to more rigorous application standards.

The proposed regulation does not explain the basis for the one-quarter mile radius for groundwater baseline sampling data.  Although the radius is enlarged, it is unclear how/why DMME chose this distance as opposed to some other, nearer or farther radial distance.  Presumably, DMME considers this range to be more prudent and safer than the current much shorter one, but the regulation should set forth DMME’s rationale, preferably with its scientific basis.  Also, it would seem that different topographies would mean different safety zone requirements, particularly when some topographies make it quite difficult if not impossible to contain the negative effects of unsafe water.  It would seem reasonable to include not only the explanation for the one-quarter radius but also establish different, appropriate radii for different topographies.  Also, the regulation should prohibit drilling within a specified distance (again based on scientific research by industry-independent and qualified sources) from populated areas.  No one’s water supply should be jeopardized by nature’s whims at dispersing water tainted by chemicals (apparently unknown to them) that the drilling companies (ies) have used.  The proposed regulation provides for follow-up testing after the well is completed.  It is not clear if DMME or the drilling companies (ies) are required to notify potentially affected persons or businesses if the follow-up testing results fail to meet standards.  Nor is it clear that DMME will prohibit operation of the well until further testing shows no violation.  Nor is it clear if continuous or at least frequent water sampling will be required, and results reported, during the well’s operation and after it ceases operation.  All of these omissions need to be addressed in the final regulations.

If a pre-application meeting is needed with respect to “potential drilling in Tidewater Virginia”, then it is surely needed for all areas of Virginia.  As written, the proposed regulation apparently assumes that an applicant wishing to drill in other areas of Virginia already understands “the requirements of the environmental impact assessment required pursuant to § 62.1-195.1 of the Code of Virginia.”  Surely this will not always be true.  The final regulation should require such a pre-application meeting with all applicants, or least with all applicants who have never applied to and received DMME for drilling approval.

As noted at the outset of these comments, I request DMME to complete a much more thorough review and revision of gas drilling regulations than is evident from these proposed regulations before it considers any permits for shale or any other type of fracking.  The proposed regulation is in serious need of improvement and the public deserves both the improvements and the opportunity to review them again prior to promulgation.

I look forward to your response to these comments.