LWV Questions for Discussion: Fracking Study

These are questions that may be discussed by Leagues prior to the Fracking Studyconsensus. They may be discussed in any order. There are no right or wrong answers.

1.Are DMME’s proposed regulations (reference page 7) stringent enough? Too stringent?What changes would you recommend?

Viginia Department of Mines, Minerals, and Energy (DMME’s) proposed regulations do not go far enough. Although the pending rulemaking proposal is a step in the right direction on a few issues, much more needs to be done to bring Virginia’s regulations up to date. DMME’s proposed regulations are the result of a narrow review of limited sections of its existing regulations. While DMME engaged a “Regulatory Advisory Panel” (“RAP”) to review its proposals, it did not broaden its regulatory review to address other aspects of its regulations as requested by at least one member of the RAP, as well as the Sierra Club and others. The Sierra Club participated in the RAP review process with representatives attending and submitting comments along the way. It also filed comments on the proposed final rule. And, joined by other organizations, it petitioned the Governor, in December 2015, to require a comprehensive, public review of DMME’s drilling regulations.

As shown in the Sierra Club’s submissions, there are many weaknesses in Virginia’s current regulations which need to be corrected. Indeed, in a 2013 survey of state fracking regulations, Resources for the Futures (RFF) rated Virginia’s regulations as the least stringent in the country. RFF, “The State of State Shale Gas Regulation” (June 2013).

Virginia should strengthen its regulations in order to provide state-of-the-art protection for its citizens before issuing any new permits for fracking, particularly in areas that have not previously been subject to modern versions of fracking in the past, like the Taylorsville Basin.

As further illustrations of the deficiencies.

  • DMME does not require a operators to submit a comprehensive drilling plan for public review and approval with maps that fully disclose the risks and all planned measures to minimize impacts to people, water, the environment, property, infrastructure, and the community.
  • DMME allows open pits and injection wells for fracking waste water, and spreading wastewater across cropland and forests, rather than using enclosed containers. DMME open-pit rules are weak. Colorado (CO), for example, has a 60mil liner requirement for open pits, but DMME calls for an 8-10mil liner, roughly the strength of a contractor garbage bag. The only revisions DMME has proposedto waste water regulations is to require fencing around the open pits, starting when the new regulations take effect in January 2016.
  • There are no prohibitions against drilling through drinking water aquifers, even though more than 12 million Virginians get their water from the Piedmont aquifer.
  • There is no consideration of the impact on local water supplies. When considering the effects of fracking on water supply and safety, there are four main areas of risk: the depletion of fresh water sources; spills and leaks of fracking fluid; mismanaged produced water and flowback; and stormwater pollution. Stormwater, flowback, produced water, and wastewater can be harmful because they contain dissolved solids and naturally occurring radioactive materials (NORM). Because of the recent rapid growth in fracking, there are still many uncertainties about the effects of fracking on water, but there are recent studies linking fracking to groundwater contamination. EPA issued a non-peer-reviewed draft report that had an oft-quoted, but unsubstantiated statement in its Executive Summary and news release that there was no widespread link between fracking and contaminated water. However, their own Science Advisory Board disputed that statement, asking EPA to remove it because there was no data in the report that supported that conclusion.
  • There are no regulations for handling naturally occurring radioactive materials (NORM) brought to the surface by fracking. This was pointed out by STRONGER in 2004, but only this past month has DMME agreed to even look at the issue. The Sierra Club met with the Virginia Secretary of Trade and Commerceand DMME this past summer and raised this question; the reply was "it’s not an issue". How could that be the answer, given that SW Virginia has higher levels of radon? See the article in the Free Lance-Star where DMME now states that they will examine “legacy wells” (oil and gaswells that were drilled in the mid-1980s)for radioactivity. But that half-measure raises lots of questions, all of which have “no” as the answer: Are these wells representative of the current type of drilling proposed for the Taylorsville Basin? Did they drill to the same depth as current wells would be drilled? Do they know whether radioactive debris was left on site or dumped elsewhere?
  • There has been no study done about the impact that increased number and severity of earthquakes would have on the nuclear power plants at Lake Anna, or on well casings, or on the use of injection wells in the Taylorsville Basin.According to the United States Geological Survey (USGS), the Central Virginia Seismic Zone and the Giles County Seismic Zone are located in Virginia, and they produce recurrent small earthquakes at least every few years. The North Anna Nuclear Generating Station is in the Central Virginia Seismic Zone, where, since 2011, three earthquakes have struck. Per EPA, as of 2011, there are no Class II wells (used to store salt water and other fluids produced during extraction) in Virginia, but the regulations are silent on whether they can be used.See The USGS has stated that the process of fracking is linked to earthquakes. “Fracking causes extremely small earthquakes, but they are almost always too small to be a safety concern.” [author emphasis] See The Nuclear Regulatory Commission(NRC) has rated the 2 North Anna Nuclear Power plants as the 7thriskiest in the U.S. for core damage from earthquakes. See
  • There are some ways of controlling fracking through local zoning regulations, but these are under threat from the Oil and Gas (O&G) industry lawyers who attend Public Hearings and who lobby for legislation. O&G lawyers threaten lawsuits if any local zoning regulations restrict fracking in any way. This happened in the September 2015 and August 2016 King George County Board of Supervisors meetings where zoning changes were considered to restrict where fracking can occur in the County. Similar threats have been made in Westmoreland County.
  • There are no provisions for limiting truck impact on roads, nor for covering damage to the roads, for either the Counties where fracking would take place, or the pass-through counties adjacent to where fracking would occur. This reinforces concerns local governments have of not having sufficient tax revenue to fix problems caused by fracking.
  • There are virtually no funds set aside for monitoring abandoned wells and taxpayers are stuck paying for problems that arise. See the Wall Street Journal story “How ‘Orphan’ Wells Leave States Holding the Cleanup Bag”
  • The surety bonds required for restoration of sites and for handling disasters are so small they are laughable, and are especially egregious for “blanket” bonds. See question 4 below.
  • No consideration has been given to health impacts of residents near the sites. The Virginia Department of Health was not included in evaluating fracking risks. In both New York (NY) and Maryland (MD), health professionals were involved in evaluating fracking risks, and so it has been banned or a moratorium issued because of the unacceptable risk to residents’ health.
  • Set-backs from environmentally-sensitive areas or places where people or wildlife live or work are inadequate. DMME regulations allow wells to be drilled within 200 yards of homes, hospitals, etc., well within air pollution zones.
  • There are insufficient funds and too few staff for Department of Environmental Quality (DEQ) and DMME personnel to monitor the well sites on a regular basis, so wells are only monitored when drilling occurs and a few months afterwards. Regulations require that drillers self-monitor and report problems after that.
  • There is too little water in the Taylorsville Basin for fracking and current farm, resident, and industrial use, given the enormous amount of water needed for each well (4 to 5 Million gallons per well) and the fact that such wells can be fracked multiple times. Drillers extract water from wherever they find it, from streams, rivers, aquifers, etc., without any cost to them or consideration to local inhabitants.
  • There is no way to cleanse the water once contaminated by fracking. In June 2016, Environmental Protection Agency (EPA) banned unconventional oil and gas extraction wastewater from municipal sewage plants, citing the inability of these plants to handle toxic and radioactive pollutants.
  • Pipelines are the preferred method of transporting fracked gas, and collector lines will be needed to gather the gas, crossing private property.
  • Mr. Skiffington,DMME, stated that DMME sets regulations reactively, after problems occur in Virginia, not beforehand and without considering things that have occurred outside Virginia.
  • Methane, an extremely potent Greenhouse Gas (GHG), commonly leaks during drilling, production, transmission, and from orphaned wells long after they have been abandoned. Methane is deliberately flared at the site if too much comes up that cannot be processed. Flaring is so commonplace in North Dakota’s Bakken shale region, it can be seen from space, captured by satellite imagery by the National Oceanic and Atmospheric Administration (NOAA). In 2014, almost 1/3rd of methane brought to the surface in the Bakken region was burned, releasing huge quantities of CO2 into the atmosphere. In 2016, the amount flared has been lowered to 10%, still resulting in hundreds of millions of dollars in wasted energy and billions of tons of released greenhouse gases.Long-term monitoring and a Leak Detection Repair program are needed, but not required by Regulations.
  • Wastewater is frequently disposed of by land application whichthreatens water and soil quality and Virginia’s agricultural and forestry industries. See 4 Va. Admin. Code § 25-150-420(B), (D). This is especially true when land disposal is authorized in the 100-year floodplain or near streams and creeks.See the letter from Bradley Lambert, Deputy Director, DMME, to R. Brooke Lewis & Kathryn M. Zunich, 2, 6–7 (June 24, 2010) describing DMME’s consideration of the 100-year floodplain for a proposed Marcellus well in Bergton, VA, and approval of land application for produced fluids. Voluminous wastewater will quickly saturate soils, and land application may render rural lands unsuitable for agriculture or forestry. A study from the U.S. Forest Service documented tree mortality rates over 50% and a 50-fold increase in soil sodium and chloride levels when fracking fluids were experimentally applied to forestland in West Virginia.
  • Radon and other radioactive materials are not adequately covered by state regulations. The STRONGER review recommend regulation changes to deal with this, but they have not yet been implemented.
  • DEQ and DMME are not staffed adequately for a monitoring effort. Given the number of instances where both Agencies have not monitored environmental issues under their control, it is unlikely that they will be able to monitor fracking in a timely manner. There are many instances where DEQ has not provided regulatory oversight when fracking gas pipelines were under development. There is no mandatory system to report violations, so the public may not become aware of problems that occur. In Colorado, there is a public searchable on-line data base. See

2. What has priority—the public’s right to know the chemicals being used in fracking, or theprotection of trade secrets? Does your opinion change if the chemicals used would bedisclosed to first responders in the event of an emergency?

The peoples’ right to know clearly outweighs industry’s claim of secrecy, because of the risk to the public’s health and safety. That risk is far too great to hide behind trade secrecy.

  • You can be absolutely certain that industry wants them kept secret because people would object vociferously if they knew how toxic these chemicals are.At least one state requires full disclosure. If they can do it, why not Virginia? Why should our citizens be subject to the whims of drilling companies that want to hide chemicals that may get into our water, air, land, and body?
  • FracFocus is an industry-created-and-maintained database that is not mandatory, so nothing requires industry to disclose all the chemicals used.In fact, industry usually only discloses hazardous chemicals listed on Material Safety Data Sheets (MSDS), less than half of all the chemicals used in fracking. Submissions to Frac-Focus are not made under oath, and it appears that no penalties result from false or incomplete submissions. Yet, DMME is relying on an extract from that database to monitor chemicals used, not a direct submission from drilling companies, under oath.Baker-Hughes, one of the world’s largest fracking companies, voluntarily discloses their fracking chemicals because of the public’s right to know.
  • Disclosure to emergency responders in an emergency is not enough. (1) Emergency responders and public health officials need to know beforehand what the chemicals are so they can develop protocols for dealing with them, and then practice how to address them. (2) Doctors treating chronic conditions or looking at unusual symptoms may have no way to protect their patients without public disclosure that alerts them to harmful chemicals. (3) Are family members, who may have been exposed themselves, entitled to know what the chemicals are? Apparently not. (4) Can doctors tell patients or public health officials or other medical professionals the identity of potentially harmful chemicals? If not, how can anyone know what symptoms to look for or plan a course of action to protect themselves?
  • Additionally, well/water monitoring-before and after -need to know what toxic chemicals could end up in wells and aquifers.
  • FYI, Colorado, in 2011, passed a full disclosure law, within 60 days after thefracking is completed.

3. How long should a well be monitored after it has been plugged and the site reclaimed?Who should have responsibility for this? Virginia? Operator? Landowner? Locality?

Monitoring should continue for decades and money needs to be set aside to fix problems when they occur.

  • As reported in the 2015 Compendium of the Concerned Health Professionals of NY, “According to Schlumberger, one of the world’s largest companies specializing in fracking, about five percent of wells leak immediately, 50 percent leak after 15 years, and 60 percent leak after 30 years. Data from Pennsylvania’s (PA) Department of Environmental Protection for 2000-2012 show over nine percent of shale gas wells drilled in the state’s northeastern counties leaking within the first five years. Leaks pose serious risks including potential loss of life or property from explosions and the migration of gas or other chemicals into drinking water supplies.
  • There is virtually no monitoring of wells once abandoned. DMME doesn’t have the staff nor the money to monitor closed wells. They are now only looking at a few wells abandoned 30 years ago, because of a lack of funds and staff.
  • Who is responsible?The state is presumably responsible for clean-up if things are discovered years later, unless it can find and force former operator or the owner of the polluted property to do the job. Some drilling companies will have gone out of business long ago, so no one would pay for rehabilitation of sites that have problems. Most wells that are abandoned are forgotten. Virginia has an orphaned well fund but it is inadequate to do the job.
  • See the article from Wall Street Journal 2/25/15 (subscriber paywall), How ‘Orphan’ Wells Leave States Holding the Cleanup Bag. . "Who pays to plug a well? Abandoned wells can deteriorate underground over time, a process that can go unnoticed without inspection. A 2011 study by the Groundwater Protection Council, a nonprofit made up of state water agencies, found orphaned wells caused about one in five incidences of recorded oil and gas groundwater contamination in Ohio and Texas."

4. Is the amount of financial assurance currently required by the Code of Virginia sufficient(reference page 15); if not, how should it be changed? Should blanket bonding be allowed?

As administered by DMME, bonding requirements are completely inadequate to cover even the smallest of problems. Although the law authorizes DMME to require more than the minimum bond and to reject requests for absurdly-low multi-well (“blanket”) bonds, DMME does not require adequate bonding to cover the damages the public could suffer.