Thank you for the opportunity to comment on the proposed revisions to Virginia's Gas Drilling Regulations.

The natural gas industry would like to use unconventional shale gas drilling methods, including hydraulic fracturing combined with horizontal drilling that can extend 1.5 miles horizontally from the drilling pad, in at least two areas of Virginia (shale deposits, including the Marcellus Shale, in the western part of the state, and the Taylorsville Basin in the Tidewater area). While no permits for unconventional methods have been granted yet in the Tidewater area, and no high-volume fracking has yet occurred in Virginia, more than 80,000 acres in the Tidewater area have been leased with the intent to frack. Virginia needs to be prepared with strong regulations that address the many risks.

   

Industry points to forms of fracking that have occurred in the southwestern part of the state without publicized environmental harm. These include coal bed methane and lower-volume fracking which reportedly use far less water, fewer chemicals, and produce far less toxic wastewater than high-volume techniques. The forms of fracking now under consideration present a greater threat to our natural resources and health. 

 

Virginia had the least protective gas drilling regulations of all 31 states with actual or potential shale gas production, according to a 2013 survey of shale gas regulations by Resources for the Future. The proposed changes will not adequately improve the regulations.

 

In order for Virginia in develop more protective gas drilling regulations, I would like to see:

 

• An Interagency study is needed in advance of regulation. This proposed regulation fails to consider the most important question: Is it in Virginia’s interest to allow these new forms of unconventional drilling at all? The Governor should order a rigorous interagency study of the health, environmental, economic and other risks and benefits to Virginia, as Governors of Maryland and New York have done.

 

• Comprehensive review of drilling regulations is essential. If the interagency study finds that it is possible to safely regulate unconventional shale drilling techniques, a rigorous and comprehensive review of existing drilling regulations will be needed. No permits for unconventional shale gas drilling should be approved until this thorough review has been completed and rules that adequately protect the public have been implemented.

 

• Health experts must be involved in the regulatory review. Many of the most serious risks of fracking are to human health. A more rigorous and thorough review of these regulations should be conducted, and should rely on public health professionals with expertise in the health issues associated with shale gas fracking operations. In addition, a complete health impact assessment (HIA) should be conducted prior to approving new shale drilling methods in Virginia.

 

• Open-air waste pits must be prohibited. The proposed regulations would continue to allow the use of open-air pits to store toxic wastewater, a practice that has led to overflows and harm to surrounding land, groundwater and wildlife in other states. The air pollution that escapes into the atmosphere from open pits also can cause disease in people living nearby. Given the dangers, other states such as New York and Pennsylvania now require closed tanks for capturing flowback water from a well. Virginia should adopt this best practice.

 

• Fracking wastewater must not be disposed of by spreading it on roadways, or agricultural and forest land. The proposed regulations would continue to allow the practice of spreading fracking wastewater on roadways, agricultural and forest land as a means of disposal, assuming the fluids do not exceed certain chemical limits. “Best practice” is to prohibit this fundamentally unsafe practice, as other states have done.

 

• Regulations must provide for safe testing, labeling, transportation, storage and disposal of drilling wastewater. Drilling produces large amounts of briny wastewater, usually toxic and sometimes radioactive, that cannot be properly treated in any wastewater treatment plant in Virginia. Testing, labeling, transportation, storage and disposal of such wastewater has presented huge problems in other states and must be addressed in Virginia’s regulations in consultation with the Department of Environmental Quality (DEQ) and VDH. Permits for unconventional shale fracking must not be issued unless these public health and environmental risks have been fully addressed.

 

• Regulations should provide similar protections to all Virginians. The Virginia Gas and Oil Act protects Tidewater Virginia from some of the risks associated with drilling, but these protections are not extended to the rest of the state. For example, drilling companies are required to follow “best practice” by safely disposing of drilling muds and cuttings (toxic drilling waste) in Tidewater, but are allowed to bury the waste on-site in western Virginia, despite the obvious risk that toxics will contaminate groundwater and land. There is no reason for this double-standard. Oil and gas drilling regulations should extend “best practice” protections to all Virginians, not just those in Tidewater

 

• Protective setbacks are an essential “best practice” missing from the proposed regulation. Given the risks inherent in drilling for oil and natural gas, wells and infrastructure need to be set far back from floodplains, public water supplies, watersheds, fisheries, schools, hospitals and other sensitive areas. Other states provide protective setback requirements in their regulations. Yet Virginia’s only requirement for wells is that they are a mere 200 feet from an occupied building. Much more protective setbacks are another “best practice” that Virginia should adopt. 

 

• Regulations must address serious air pollution caused by drilling operations. Pollution from methane, a powerful greenhouse gas, ozone, and other harmful gasses associated with shale drilling has been a major problem in states that allow shale drilling. Air pollution must be addressed by the regulations, as it is in other states. Moreover, testing for methane must continue for years after closing the well, because this potent greenhouse gas can leak from wells many years after the well is abandoned. EPA’s proposed regulations may provide a floor in this area, but are subject to litigation and other uncertainties. Virginia should provide higher and more certain standards.

 

• State regulations should support local authority. State regulations should ensure that operators respect local land use and zoning ordinances by requiring certification of compliance by the operator. Operators should be required to certify that they are complying with all local, state and federal requirements at regular intervals, not just at the time they apply for a permit. Companies also should be required to report any violations of local, state and federal law to DMME promptly, along with a description of measures that will be taken to correct any errors or omissions. Pre-application meetings publicizing the drilling plans and inviting the public to ask questions should be required for all fracking proposals, not just those in the Tidewater area. 

 

• Weak water testing requirements need to be strengthened. The regulations establish some baseline water testing and monitoring requirements, but only for groundwater, only within a quarter mile of the wellpad and only for a limited number of chemicals. There are no requirements to test surface water. Testing requirements stop 12 months after the well is completed, while other states such as Colorado require testing for five to six years. The regulations should be amended to provide “best practice” protection for Virginia’s groundwater and surface water supplies, including testing for all the chemicals used to frack the wells.

 

• Water supply issues should be addressed. Shale fracking can require large quantities of water, putting local water supplies at risk. Identification of quantities and sources of water and permitting should be required. While some protections are provided for the Tidewater area, similar protections should be extended to western Virginia.

 

• Bond requirements are inadequate. DMME does not require bonds that are sufficient to cover the costs of addressing major spills, blowouts, polluted aquifers, and other risks. DMME has promised to address bond requirements in a separate Guidance Document. This is an important issue to all Virginians concerned with the potential shifting of costs and risks from the drilling industry to state and local jurisdictions and landowners.

 

• Ingredient disclosure should be strengthened. The regulations continue to provide companies with substantial latitude to conceal the identity of harmful ingredients of fracking fluids by claiming that they are proprietary, except under very limited emergency circumstances. Public disclosure of the identities of injected or spilled chemicals should be required.

 

• Disposing of fracking waste in injection wells is strongly linked to earthquake risk and should not be allowed in seismically active regions of Virginia. This is especially true in light of the presence along fault lines in central Virginia of the North Anna Nuclear Generating Station, which suffered damage in Virginia’s 2011 earthquake

 

 

 

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