By Jeremy A. Mercer and Cecil C. Kuhne, IIIa

On August 22, 2011, the West Virginia Department of Environmental Protection ("WVDEP")-pursuant to Governor Ray Tomblin's Executive Order 4-11, issued July 12, 2011- promulgated emergency rules related to horizontal drilling and hydraulic fracturing (see July 29, 2011, Fulbright Litigation Briefing "West Virginia Executive Order Regulates Drilling in the Marcellus Shale").

The new emergency rules concern permitting requirements and operational procedures of horizontal wells, requiring operators to provide extensive information and follow new regulations for those wells. Some of the information required by and regulations to be enforced under the new rules relate to erosion and sediment control, site construction and safety, well construction and casing, and water management in certain circumstances. The new rules also require operators to follow certain operational rules to protect water quality and quantity and to provide public notice before drilling a first horizontal Marcellus Shale well on any pad located within a municipality, as that term is defined by statute. According to news reports, the West Virginia Secretary of State still must approve the rules before they become effective, after which they will remain in effect for 15 months.

More, specifically, the new WVDEP rule:

• Requires certified and detailed erosion and sediment control plans to be submitted with applications for well work permits involving well sites that disturb three acres or more, which plans will be considered conditions of the permit and, therefore, enforceable;
• Requires well work permit applications for sites that disturb three or more acres to be accompanied by a detailed site construction plan certified by a registered professional engineer, which plan will be considered conditions of the permit and, therefore, enforceable;
• Requires applications for well work permits to estimate the volume of water that will be used (in the drilling, fracturing, or stimulation phases), and if in excess of 210,000 gallons during any month, file a detailed water management plan, which must include a list of the anticipated additives for the fracing/stimulation process, and a list of the actual additives used must be submitted with the completion report required by statute (the rules specifically state that their requirements do not abrogate the statutory requirements that apply to water withdrawals in excess of 750,000 gallons per month);
• Requires applications for well work permits for sites that disturb three or more acres to include a detailed well-site safety plan for the protection of those on the site, as well as the general public and the environment, which must be provided to local emergency planning committees at least seven days before earth disturbance;
  • The well-site safety plan must include, among other things, an evacuation plan for personnel and residents in the area surrounding the well site who have the potential to be affected by an emergency;
  • The well-site safety plan also requires that the Operator list all schools and public facilities, including telephone numbers, within a one-mile radius of the proposed well;
  • The rules also require, as part of the safety plan section, that an Operator conduct weekly on-site safety meetings where all personnel must check-in and out, and logs of those meetings must be maintained on-site;
• Requires operators to comply with various prescribed operational and reporting rules related to quantity, location, methodology, identification, record-keeping, transportation, drill cuttings, and casing standards to protect the quantity and quality of water in surface and groundwater systems during and after drilling operations and during production and reclamation; and
• Requires well operators to comply with prescribed public notice procedures for certain wells within municipalities, as that term is statutorily defined.

The WVDEP emergency rule is a timely one. On August 12, 2011, Monongalia County Circuit Court Judge Susan Tucker invalidated Morgantown, West Virginia's ban on Marcellus shale gas drilling in the city and its environs on the grounds that the ordinance was preempted by the state's comprehensive regulatory scheme (see August 16, 2011, Fulbright Litigation Briefing "Morgantown City Ban On Marcellus Shale Gas Drilling Overturned").

Review the rules on the West Virginia Department of Environmental Protection website.

This article was prepared by Jeremy A. Mercer (jmercer@fulbright.com or 724 416 0440) and Cecil C. Kuhne III (ckuhne@fulbright.com or 214 855 8122) from Fulbright's Litigation Department.

Learn more about Fulbright's Shale and Hydraulic Fracturing Task Force at www.fulbright.com/shale.

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