Please accept the following comments submitted on behalf of the King George County Board of Supervisors: 

Comment concerning DMME NOIRA regarding Gas and Oil Regulation

The King George County Board of Supervisors requests and supports DMME's consideration of amendments to the Virginia Gas and Oil Regulation (4 VAC 25-150) to ensure gas and oil regulation reflects current industry best practices; to expand disclosure of ingredients used in gas and oil well stimulation and completion on permitted and future gas and oil operations in the Commonwealth; and, to determine if current regulatory requirements are sufficient to properly regulate drilling in different geographical areas of the Commonwealth.  The King George County Board of Supervisors submits this comment for the following reasons and may supplement this comment in future: 

1.      Virginia’s Gas and Oil Regulation should recognize the ecological significance of the Chesapeake Bay and Tidewater Virginia.  The ecological and environmental significance and sensitivity of the Chesapeake Bay and its many tributaries that flow through Virginia’s Tidewater Region are widely recognized.  The Code of Virginia is replete with laws and policies to protect the waters and ecology of the Bay.  Moreover, Virginia already recognizes the unique sensitivities and challenges presented when considering whether to permit gas and oil drilling within the Chesapeake Bay watershed.  See § 62.1-195.1 of the Code of Virginia (“Va. Code”); Va. Code § 45.1-361.29 of The Virginia Gas and Oil Act; Groundwater Management Act of 1992, Va. Code § 62.1-254, et seq.; and, associated regulations.

The potential impact of oil and gas drilling activities within the Chesapeake Bay watershed and the Tidewater Region demands that regulatory agencies ensure applicable regulations and oversight of drilling operations are adequate and tailored to protect these valuable natural resources, and the citizens, businesses, and their communities that may be impacted by these activities.   

2.      The Virginia Gas and Oil Regulation should be amended to require disclosure of ingredients used in gas and oil well stimulation and completion.  Disclosure of ingredients used in well stimulation and completion, also known as “hydraulic fracturing”, has received a great deal of attention since new methods and technologies, such as indirect drilling, have opened up previously untapped reserves of gas and oil in certain areas of the United States.  Many have questioned the ingredients of fracturing materials, due to concerns about contamination of groundwater, surface waters, and lands.  These same concerns have arisen in communities located within the Taylorsville Basin, which spans from Maryland, across Virginia’s Northern Neck and south to Richmond, including wide swaths of King George County. 

Due, in part, to these concerns, gas and oil industry representatives established the Frac Focus Chemical Disclosure Registry (www.fracfocus.org).  Many states rely upon Frac Focus and have incorporated the registry into their regulatory regimes, however, some states have moved forward with rules requiring the disclosure of frac fluid ingredients to regulatory agencies.  Industry-based registries, such as Frac Focus, may be insufficient for proper oversight and public protection because they maintain and protect the secrecy of frac fluid blends, based upon the notion that they constitute proprietary trade secrets and because there are little or no consequences for operators who fail to report to the registries. 

More recently, on February 11, 2014, the United States Environmental Protection Agency (EPA) issued Permitting Guidance for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels:  Underground Injection Control Program Guidance #84, imposing certain permitting requirements regarding the disclosure of hydraulic fracturing activities utilizing diesel fuel.  The EPA guidance reflects many best practices developed by industry and stakeholders, including state regulators.  EPA’s recommendations may be helpful to DMME and other regulatory agencies in improving regulatory protections for underground sources of drinking water and the public health.  Further information concerning the EPA guidance is available here:  http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/hydraulic-fracturing.cfm

DMME should expand the Virginia Gas and Oil Regulation to require full and complete disclosure to the agency of all ingredients used in well stimulation and completion activities in Virginia.  Full disclosure of well stimulants is necessary for citizens and public bodies to properly understand and make informed decisions concerning gas and oil mining activities in their communities.  Moreover, in case of an inadvertent release of fluids, authorities should be able to access the registry so adequate measures can be taken to properly address potential contaminations.   

3.      The Virginia Gas and Oil Regulation should be amended to reflect current industry best practices.  The advent of indirect drilling, combined with hydraulic fracturing have resulted in a newfound gas and oil boom in the United States.  As industry operators, states and communities have responded to the resulting challenges and opportunities, many innovations and best practices have been developed that have improved the landscape for all engaged or affected by this growing industry.  DMME should study these innovations and best practices and incorporate the most effective and practical in the Virginia Oil and Gas Regulation.

The Virginia Gas and Oil Regulation may already incorporate certain industry best practices, however, new means or methods may be valuable to the industry and affected communities, such as utilizing biodegradable “green frac” fluid, rather than toxic or potentially toxic substances; emissions and other controls on storage tanks and compression stations; closed-loop drilling; impoundment integrity; and, groundwater testing and monitoring. 

DMME can look to a number of organizations for input concerning industry best practices, particularly the Shale Gas Roundtable, which includes the following leading organizations:

·         American Petroleum Institute

·         Appalachian Shale Recommended Practices Group

·         Center for Sustainable Shale Development

·         Environmental Defense Fund

·         Intermountain Oil and Gas Best Management Practices Project

·         Investor Environmental Health Network  

·         Marcellus Shale Coalition

·         Pennsylvania Department of Environmental Protection

·         State Review of Oil and Natural Gas Environmental Regulations

4.      Current regulatory requirements are not tailored to properly regulate drilling in different geographical areas of the Commonwealth.  Differing geology and ecological sensitivities require unique regulatory treatment of different areas of state. DMME’s regulations and their enforcement have been largely focused upon the geology of Southwest Virginia, where most, if not all, of the gas and oil drilling activities in the Commonwealth reside.  As is recognized by DMME, however, the geology of Southwest Virginia is vastly different from the geology of eastern Virginia and the Tidewater region.  Therefore, applicable regulations should be reviewed and augmented to address the particular geology of Tidewater Virginia and means and methods necessary to safeguard the water, other natural resources, and the environment within the region. 

5.      Virginia’s Gas and Oil Regulation should be amended to require permit applicants to certify compliance with all pertinent local ordinances.  Section 45.1-361.5 of The Virginia Gas and Oil Act recognizes that gas and oil drilling are subject to the authority of local land-use ordinances.  While Section 4 VAC 25-150-30 of the Virginia Gas and Oil Regulation recognizes a permittee’s duty to comply “with other laws and regulations”, it does not explicitly recognize the authority of local land-use ordinances.  It is evident that recognizing local land-use authority is proper because DMME’s Geothermal Energy Regulations include this recognition in Section 4 VAC 25-170-30(B)(1) (“Applications will not be reviewed until the operator or designated agent submits proof of compliance with all pertinent local ordinances.”).  Therefore, The Virginia Gas and Oil Regulation should be amended to recognize the authority of local land-use ordinances, for the sake of compliance with the Code of Virginia and consistency within DMME regulations.  

6.      Permit applications should not be considered complete until the DMME completes its review and amendments deemed necessary have been approved and become effective.  Recognizing the exponential growth of the gas and oil industry as a result of indirect drilling and hydraulic fracturing methods, the growing energy needs of our society, and the potential ecological impacts upon Virginia and its communities if gas and oil drilling is not undertaken with due regard for the environmental consequences, safety, local impacts, and citizens’ quality of life, the King George County Board of Supervisors requests DMME forego consideration of gas and oil permit applications until the agency completes its review of the Virginia Gas and Oil Regulation and amendments deemed necessary have been approved and become effective.