PROPOSED REVISIONS TO VIRGINIA’S GAS DRILLING REGULATION

“We should not do any of these techniques here in Virginia until everyone is 100 percent – 100 percent – sure of safety.… Let’s look at all the alternatives. Wind is clean, wind is safe. Solar is clean, solar is safe.”  Terry McAuliffe, as candidate for Governor, September 2011

Background

• 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 -- (“fracking”) 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.

• The agency that oversees gas drilling, the Department of Mines, Minerals and Energy (DMME), started a process to revise its regulations in late 2013. The original notice filed by DMME indicated that it would revise gas drilling rules to bring them up to “best industry practice.” However, in conducting the review of its regulations, DMME chose to focus on only a handful of issues including requiring disclosure of fracking fluid ingredients, limited baseline testing of groundwater, some improvements to well integrity, requiring submission of an emergency response plan, and requiring fences around open storage pits. DMME refused to conduct a thorough review of its regulations and did not respond to detailed comments filed by environmental groups.

Interagency study 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. This would meet the Agency’s state goal of bringing Virginia’s Fracking regulations up to “best practice”. Failure to do so ignores multiple, critical facets of the industry that affect the health of Virginia residents, the land we live on, the air we breathe, and the water we drink.

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. These rules must address, at a minimum:

Environmental Issues - Water:

• disposal, handling, storage, and treatment of waste water;

• mandatory baseline testing of all water within 1.5 miles of every well;

• identification of the amount and source of the water used in the process and its impact on residents and the aquifer;

• safeguards against water pollution, including surface runoff into streams, rivers, and lakes, and underground aquifers;

• conformance with the Chesapeake Bay Act.

Environmental Issues - Land:

• Disposal of radioactive slag, including weekly testing and documentation of the amount of radioactivity contained in the debris brought up by the process.

• Set-back distances from occupied dwellings, farm buildings, schools, hospitals, environmentally sensitive areas, other locally defined areas, etc., where drilling could impact the health and safety of residents, wildlife, and the environment;

• Fencing around well sites;

• Restoration of land to its pre-drilling conditions.

Environmental Issues - Air:

• methods used to prevent methane escaping into the atmosphere from the wells;

• Periodic testing of air quality for chemicals, particulates, and other hazards to health;

• Odor control

Local and Interstate Road Impact: Assessing the potential damage to County and City roads from heavy construction traffic and making Counties whole for damage caused to roadways by

Operating Noise Levels: Identification of and levels of operational noise generated by daily operations, 4 times daily, at 6 AM/PM and 12 AM/PM.

Performance Bonds: Bonds must be of sufficient dollar amount to handle most potential environmental disasters, including clean-up of spillage and leaks, road damage, well closure, monitoring of well sites for a period of 10 years after well closure, and restoration of sites to previous conditions.

Local Zoning Permits: All drilling operations must obtain local Zoning Permits prior to beginning any drilling operations, and the pre-drilling site conditions must be documented as part of the Zoning Permit process, including water and aquifer testing, pre-drilling site photos, and any other documentation requested in the local Zoning Permit application.

Health experts must be involved in the regulatory review. Many of the most serious risks of fracking are to human health. It is surprising that no one with public health expertise was appointed to the Regulatory Advisory Panel convened by DMME, and that the Virginia Department of Health (VDH) does not appear to be involved. 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. This is critical to ensuring that the fracking process does not cause health issues that could have been prevented. There have been multiple medical groups that have pointed out the health issues associated with fracking, including:

• Public health experts in NY just released the 3rd Edition yesterday of their report linking fracking to health problems. http://concernedhealthny.org

• A new study from the Johns Hopkins Bloomberg School of Public Health has linked hydraulic fracturing to premature births and high-risk pregnancies.

• Scientists at the Colorado School of Public Health in January published a peer-reviewed paper in the journal Environmental Health Perspectives finding an increased rate of congenital heart defects in babies born to mothers living near gas wells in Colorado.

• The British Medical Journal: 20 high-profile doctors, pharmacists, and public health academics said the “inherently risky” industry should be prohibited in the UK. The letter was prompted by a report from health charity Medact which recommended a UK-wide moratorium be placed on fracking. Scotland has already imposed a ban on the industry pending the results of a public health impact assessment.

• A study that showed that Fracking chemicals can alter mouse development. Wastewater from hydraulic fracturing, or fracking, may tote several hormone-disrupting chemicals that can alter the development of mice, researchers report.

• Residents of Washington County, Pennsylvania have complained of headaches, nosebleeds and skin rashes, but because there are no comprehensive studies about the health impacts of natural gas drilling, it's hard to link them to the gas wells and other production facilities that have sprung up around them. A group of scientists from Pennsylvania and neighboring states have stepped in to fill this gap by forming a nonprofit, the Southwest Pennsylvania Environmental Health Project (SWPA-EHP), to provide free health consultations to local families near drilling sites, using the best available science to help people deal with their ailments.

• The Endocrine Society published a peer-reviewed study that calls for more low-dose testing of endocrine-disrupting chemicals, with huge implications for the debate on natural gas drilling. Their report, titled “Hormones and Endocrine-Disrupting Chemicals: Low-Dose Effects and Nonmonotonic Dose Responses”, shows that even low doses of some toxins can be harmful, and that finding is relevant to the chemicals used in natural gas drilling and hydraulic fracturing. (http://insideclimatenews.org/sites/default/files/assets/2012-03/Endocrine%20Reviews%20article.pdf)

• Dr. David Carpenter, Director, Institute for Health and the Environment at the University at Albany-State University of New York was the lead author of a study documenting the fact that oil and gas wells across the country are spewing “dangerous" cancer-causing chemicals into the air. That study that further corroborates reports of health problems around hydraulic fracking sites. “This is a significant public health risk,” says the study, published in the journal Environmental Health.

• Residents within a kilometer of a well had up to twice the number of health problems as those living at least 2 kilometers away, according to a study published by researchers from the University of Washington and Yale University Respiratory. This includes skin lesions and respiratory problems.

• An NIH study found that residents living within 10 miles of natural gas wells in rural Colorado, had higher incidents of birth defects, because of emissions of potential teratogens by natural gas development.http://ehp.niehs.nih.gov/1306722/

• The Natural Resources Defense Council, in a study titled “Fracking Fumes: Air Pollution from Hydraulic Fracturing Threatens Public Health and Communities” found that emissions from oil-and-gas production pose a significant threat to human health, and immediate steps must be taken to reduce exposure to the toxic pollution problems. https://www.documentcloud.org/documents/1380788-nrdc-fracking-air-quality.html

• The Center for Public Integrity, InsideClimate News, and The Weather Channel, in a 2014 investigative report examined what Texas has done to protect people in the Eagle Ford from the industry's pollutants. That investigation and records obtained from Texas regulatory agencies reveal a system that does more to protect the industry than the public. What's happening in the Eagle Ford is important not only for Texas, but also for Pennsylvania, Colorado, North Dakota, Virginia, and other states where fracking is underway or being considered.

• The Clean Water Action/Clean Water Fund and Earthworks published a report documenting their investigation of pits open-air located near McKittrick, in Kern County, CA. They reviewed public documents and collected citizen air quality samples, and found documentation of a plume of wastewater containing heavy metals such as boron, high salinity, and other toxins migrating towards high quality, useable groundwater resources. They also found 24 volatile organic compounds (VOC’s), and methane, as well as Benzene and 2-Hexanone, above the Long Term Effects Screening Levels, in the air samples. https://assets.documentcloud.org/documents/1362974/ca-oil-and-gas-pit-report.pdf

• A Pennsylvania study finds a link between gas drilling and premature births. https://stateimpact.npr.org/pennsylvania/2015/10/09/pennsylvania-study-finds-link-between-gas-drilling-and-premature-births/

• A new study determines that fracking chemicals may mess with hormones, and lower sperm counts. http://press.endocrine.org/toc/endo/0/0

• Two new studies are adding to the growing body of evidence that exposure to fracking chemicals poses a risk to people’s health. Pregnant women living near fracking operations drilling for gas or oil are more likely to give birth preterm.

  http://www.healthychild.org/studies-link-fracking-chemicals-to-premature-births-reproductive-harm/?inlist=Y

• According to a report published in the journal Epidemiology, researchers found that 23 of the 24 fracking chemicals they tested disrupt normal hormone functioning. http://press.endocrine.org/doi/10.1210/en.2015-1375

There are many, many so many health issues associated with fracking that any review of regulations without health professional involvement completely negates the findings of the review. How can only one aspect of the review be considered a look at “best practice”?

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. There are many more examples of health problems residents who live near open-air pits face, and the Regulation review must consider them.

Fracking wastewater must not be disposed of by spreading it on roadways, 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 supply 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. 

Other issues that could be addressed include:

• 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.