This article originally provided by The Charleston Gazette

July 12, 2011

Tomblin orders emergency rules on Marcellus drilling

Senate President Earl Ray Tomblin, acting as Governor, was flanked by other state officials and industry
lobbyists at a news conference on Tuesday. Tomblin announced state officials will write emergency rules
to regulate Marcellus Shale gas drilling.       Kenny Kemp

By Alison Knezevich

CHARLESTON, W.Va. -- State environmental officials will write emergency rules over the next month to regulate Marcellus Shale gas drilling, Senate President Earl Ray Tomblin announced Tuesday.

At a packed Capitol press conference, Tomblin, who is acting as governor, said that he has signed an executive order to make the state Department of Environmental Protection develop the rules.

"This is simply too important for us to wait," he said.

Lawmakers, environmentalists and industry leaders called Tomblin's order a good start, but said that it is not a comprehensive plan. A citizens group pointed out that the measure does nothing to address problems faced by property owners who have conflicts with gas companies.

The rules will focus mostly on the "fracking" process, in which millions of gallons of water are mixed with chemicals and pumped underground to fracture shale deposits. Among other things, the regulations will make companies that withdraw more than 210,000 gallons of water a month disclose the list of additives used in frack fluid, and file a water management plan with the DEP.

The DEP also will work to ensure that frack fluid isn't dumped into public water systems. Engineers will have to approve erosion and sediment control plans for sites that disturb three or more acres of land.

Also, companies will have to notify municipalities of their plans to drill.

Dozens of lawmakers squeezed into the Capitol reception room to flank Tomblin for the announcement. Industry lobbyists and DEP Secretary Randy Huffman also joined the acting governor at the podium.

Tomblin began his press conference by attacking the U.S. Environmental Protection Agency, saying Washington, D.C., leaders have allowed it to "spin out of control" and that West Virginia must give regulatory certainty to the energy industry.

The crowd applauded when Tomblin said the EPA is "killing jobs."

He said his plan would ensure that the natural gas industry continues to provide jobs in West Virginia, but also protect citizens and the environment.

"Success must include responsible actions from both the public and private sectors," he said.

Earlier this year, the House of Delegates and state Senate failed to work out regulations on Marcellus development. A new legislative committee is meeting this week to try again, with hopes of devising a compromise bill that lawmakers could vote on during a possible special session later this year.

The executive order is "just a beginning," not a substitute for legislative action, said acting Senate President Jeff Kessler, D-Marshall.

"In the short term, it gives us some adequate protections," he said.

House Speaker Rick Thompson, a Wayne County Democrat who lost to Tomblin in the May gubernatorial primary, did not attend the press conference.

Tomblin said he would still call a special session if the House and Senate come to an agreement.

Public pressure for leaders to address Marcellus development is growing. On Monday, citizens rallied at the Capitol to call for a moratorium on drilling.

"The citizens out there are demanding something now, and the governor's running for election," said Don Garvin, lobbyist for the West Virginia Environmental Council. "So he's responding to the citizens in case the Legislature doesn't."

Tomblin's order is not enough in the long term, Garvin said.

"Given the Legislature's inability to act, I think this is fine," Garvin said. "I think it's a step the governor can take. Will it address all of our problems? Not even close."

Some rules in the executive order are the same as what Delegate Tim Manchin, D-Marion, proposed two years ago, Garvin added.

The rules won't require drillers to notify landowners that they plan to survey their property, said Gary Zuckett of the West Virginia Surface Owners' Rights Organization.

"We still need legislation that would protect surface owners, is the bottom line," Zuckett said.

Gas industry leaders have been calling for regulatory certainty, saying companies won't invest in West Virginia without it.

"[Tomblin's order] is the first step in putting together a regulatory program that provides for certainty," said Corky DeMarco, executive director of the West Virginia Oil and Natural Gas Association.

Tomblin is running in the state's October special election for governor. Republican opponent Bill Maloney has criticized Tomblin on Marcellus issues, saying the acting governor hasn't shown leadership.

"We need comprehensive legislation, not a temporary fix. Earl Ray isn't showing leadership," Maloney said in a statement after the press conference. "He needs to call a special session now."

Legislative leaders and industry representatives said they heard of Tomblin's plans late last week. Rank-and-file lawmakers said they found out on Monday.

Once approved, emergency rules stay in effect for 15 months. Huffman of the DEP said his agency hopes to write the regulations within the next 30 days.

Reach Alison Knezevich at alis...@wvgazette.com or 304-348-1240.