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Dave McMahon: Oil and gas industry not overregulated (Daily Mail)

As a long-time lawyer and lobbyist for surface owners, I have always said that I like almost everybody I meet in the oil and gas industry.

But like dogs that form a pack when they all get together, I find the oil and gas industry as a whole difficult to trust. It is driven by its internal competition, dynamics and profit motives.

So I must strongly disagree, based on facts, with the executive directors of the two organizations representing West Virginia drillers and their assertions in a Daily Mail Opinion column of July 27 (Anne Blankenship, Charlie Burd; “Oil and gas industry getting greener”).

Despite their statements, the industry is not one of the most rigorously regulated, and on its own it will not be environmentally responsible.

Starting on the federal level, the oil and gas industry is exempt from relevant parts of the Resource Conservation and Recovery Act (RCRA), the principle law that governs regulation of solid and hazardous wastes.

Fracking is also exempt from the federal Safe Drinking Water Act (SDWA).

At the state level, absent imminent danger, oil and gas inspectors are required by statute to give drillers a chance to abate violations found by inspectors before a final violation is issued. I wish our State Police were required to give me a chance to slow down before giving me a ticket every time I get pulled over for speeding.

And unlike the Department of Environmental Protection’s enforcement power over any other industry in the state, the Office of Oil and Gas has no power to issue its own fines on drillers. It must go to the circuit court of the county where the problem occurred; and the fines are so low, it is often cheaper to ignore the laws than to follow them.

Inspectors must have previous work experience in the industry, and there are simply not enough of them.

I once told a crowd in a county impacted by Marcellus Shale drilling that to get a problem fixed with a condensation tank they should call an oil and gas inspector. The crowd broke into laughter.

Again, I like the inspectors I meet, but there is an enforcement problem.

One obvious demonstration of the industry’s unregulated nature and lack of environmental responsibility is this: There are 12,664 old, non-producing wells that operators should already have plugged, including 4,693 that have been allowed to go unplugged for so long that the driller is out of business and there is no operator to plug them.

And the Marcellus Shale tsunami is driving small operators who do still own most of those wells out of business, so the problem will get much worse.

And “blanket” bonding requirements for oil and gas drilling is inadequate to cover the state’s costs of plugging abandoned wells.

Another state level example is the claimed regulatory effect of the state Horizontal Well Act. It was passed in a three-day special session in 2011.

For the most part, instead of surface owner protections, the act required the DEP to do studies on surface owner impacts. The studies were done by West Virginia University.

The DEP reported to the Legislature that the studies showed the need “to provide for a more consistent and protective safeguard for residences in affected areas,” and “to reduce potential exposures.”

The DEP cannot implement those protections by rulemaking because the 625-foot setback from the center of the pad is in the statutory act. We have introduced a bill every year since to implement the protections the studies said were needed, but the bill has never moved.

Of all the problems documented by the studies, the easiest example to explain is noise. The WVU studies found average noise levels from drilling activities dangerous for public health at the minimum setback distance at almost every pad they studied at almost every drilling stage.

The act requires well pads and water impoundments to be designed by engineers. Yet many impoundments studied were not built according to plans. When WVU tested the soil compaction on the impoundment dikes of the 15 impoundments it studied; only 8.5 percent of the 70 tests met proper standards.

Yes, the industry is starting to recycle frack flowback water, and it is piping fresh water to well sites instead of overloading the state’s roads.

But hiring trucks and drivers, and using new water each time costs more; we say recycling and pipelines would not be developed if they were more expensive than trucks.

The industry is not rigorously regulated, and it is not on its own environmentally responsible.

I know of one well pad with nine wells that will produce a quarter billion dollars worth of gas. One pad.

There is enough money at stake now to make them do it right environmentally and to make them pay surface owners what the use of their land is worth to the drillers and operators.

Dave McMahon is a lawyer and a co-founder of the West Virginia Surface Owners’ Rights Organization.

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