While lawmakers consider drilling bills, study questions adequacy of ‘setbacks’ to protect residents

While West Virginia lawmakers have considered a variety of bills aimed at helping the state’s natural gas drillers, a new scientific study is recommending something that hasn’t been considered by this year’s Legislature: reconsidering the adequacy of “setback” provisions meant to put some space between drilling operations and local residents.

The study, by researchers at the University of Pittsburgh, West Virginia University, and Texas Tech, recommended that existing setbacks in some states “may not be sufficient to reduce potential threats to human health.”

Researchers did not examine West Virginia’s existing setback law, but previous reports to the Legislature from the state Department of Environmental Protection have urged lawmakers to toughen that standard that was set when the state passed a new drilling law in late 2011. Lawmakers have never acted on that recommendation.

Earlier this session, the state Senate voted down an industry-backed bill (SB 596) that would have allowed gas company surveyors onto private property without permission.

Last week, Department of Environmental Protection officials reached an agreement with industry lobbyists on a plan to better schedule and coordinate the review of drilling permits, in a deal that officials say will likely kill another bill that would have allowed construction of access roads and drilling pads prior to the approval by DEP of drilling permits.

DEP Secretary Randy Huffman said that his agency worked out that deal with the industry, but still needs to discuss it with legislative leaders before that bill (SB 565) is declared officially dead.

“We’re trying to make other arrangements so that ultimately it will be dead,” Huffman said Friday.

Still pending is a third bill (SB 508) that is aimed at giving gas drillers — and potentially a wide variety of industrial and other activities — immunity from “nuisance suits” in which citizens allege that activity by someone else is unlawfully interfering with their use and enjoyment of their property. That bill was approved by the Senate and is pending in the House Judiciary Committee.

When lawmakers passed West Virginia’s Natural Gas Horizontal Well Control Act during a special session in December 2011, they included language mandating several studies by DEP to look at the way drilling affects nearby residents.

The studies examined issues like air quality, noise and waste disposal. Some of those potential impacts, including noise and dust or bright lights from heavy equipment, are not generally limited by DEP drilling permits, but are the types of complaints that have prompted more than 200 lawsuits against Antero Natural Resources, one of the state’s largest natural gas operators. Lawmakers, though, have not followed-up with legislation to address the findings of the studies.

One recommendation from DEP based on the studies was that lawmakers rewrite a provision that requires a 625-foot setback separating drilling operations from occupied dwellings. Nearly three years ago, DEP Office of Oil and Gas Chief James Martin urged lawmakers to redefine the setback so that it was based not on the distance from the center of the well pad, but on the outer edge of the drilling operation.

“While the statutorily-specified location restriction is defined to be from the center of the well pad, there are a wide variety of pad sizes and configurations that may allow an occupied dwelling to be close to a well pad,” Martin wrote in a letter to lawmakers. “Because of the potential for different well pad geometries, DEP recommends that the Legislature reconsider the reference point (i.e., from the center of the well paid) for the location restriction to occupied dwellings to reduce potential exposures.

“One option to consider would be to establish location restriction from the Limit of Disturbance (LOD) of the well pad to provide for a more consistent and protective safeguard for residents in affected areas,” Martin said. “The outermost sediment control barrier establishes the LOD around the well pad.”

The new study by WVU, Pitt and Texas Tech did not address West Virginia’s specific setback provision or how the setback distance should be measured. Instead, the study looked at setback distances for gas wells in Pennsylvania, Texas and Colorado, and reviewed local geography and air pollution models. Those states have smaller setback distances than West Virginia, but it was not clear from the study how they are measured. Researchers examined typical air emissions from drilling and also cited well blowouts that resulted in evacuations and road closures.

The study, published last month in the peer-reviewed journal Environmental Health Perspectives, concluded that “the majority of setback distances in the areas we studied are not derived from peer-reviewed data, data driven analysis, or historical events — they are a compromise between governments, the regulated community, environmental and citizen interest groups, and landowners.”

“Our results suggest that setbacks may not be sufficient to reduce potential threats to human health in areas where hydraulic fracturing occurs,” the study said. “It is more likely that a combination of reasonable setbacks with controls for other sources of pollution associated with the process will be required.”

Last week, the industry group Energy In Depth published a criticism of the study, saying that data used by the researchers was out of date and complaining that some of the study authors have connections to organizations that have opposed gas drilling.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

 

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