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Warning sounded on regulating Marcellus drilling

Marcellus bill draft finished

Editorial: Leadership on Marcellus question

CHARLESTON, W.Va. -- The co-chairman of a legislative panel on Marcellus Shale gas drilling said Monday a proposed bill gives state leaders a chance to show they have the "political will and fortitude" to beef up regulation of the booming industry.

Delegate Tim Manchin, D-Marion, said he hopes his committee will finalize a bill Wednesday, perhaps setting the stage for Gov. Earl Ray Tomblin to seek passage of the measure during a special session before the end of the year.

But it remains possible, Manchin said, that industry opposition will doom the legislation, as it has in each of the last two regular sessions. Testifying at a U.S. Senate field hearing chaired by his cousin, Sen. Joe Manchin, Delegate Manchin said failure this time would be the last straw for him on the issue.

"If the industry uses its vast arsenal of lobbyists and other means to delay or defeat a meaningful bill, you won't have to come back here to hear about it, because I'll be coming to Washington to ask for your intervention to protect our citizens and our beloved West Virginia hills," Delegate Manchin said.

Delegate Manchin made his remarks against the backdrop of a Senate Energy and Natural Resources Committee hearing that appeared designed at least in part to argue against increased U.S. Environmental Protection Agency involvement in the growing controversy over Marcellus Shale drilling.

Sen. Manchin was the only committee member who attended the hearing, held at the Robert C. Byrd U.S. District Courthouse in Charleston, and in chairing the event his comments and questions repeatedly returned to his desire to minimize any permitting or enforcement role for EPA.

In his opening remarks, Sen. Manchin said he believes that the industry needs a regulatory system "driven by the states" and that his major concern is protecting state "primacy" over drilling rules.

"Then if we don't do our job, then I believe EPA has a right to move," Sen. Manchin said.

Sen. Manchin echoed the rhetoric he uses in deriding EPA's crackdown on mountaintop removal, saying, "We're not looking for a handout. We're looking for a work permit."

Tomblin general counsel Kurt Dettinger also referenced EPA's mining policies, saying in prepared testimony that the state's approach to gas-drilling rules will be "neither punitive nor based on fear or political ideology."

And Randy Huffman, secretary of the state Department of Environmental Protection, also took a shot at EPA, saying the federal government's job shouldn't include "perpetuating the myth" that states cannot regulate mining or drilling.

But eventually, Huffman also explained that -- unlike with surface coal mining -- no federal law gives EPA any role in the permitting requirements for natural gas drilling itself.

"We've talked a lot about primacy today, but there isn't a counterpart oil and gas regulatory program on the federal level," Huffman said.

In fact, one of the more controversial elements of the hydraulic fracturing, or fracking, used by Marcellus drillers is language passed by Congress in 2005 to exempt this activity from needing an underground injection control permit under the federal Safe Drinking Water Act.

Jon Capacasa, water protection director for EPA's regional office, noted that exemption and said it leaves his agency more limited authority and makes it unlikely that EPA would step in absent state legislative action.

"I don't think there's any risk of that happening," Capacasa said.

Capacasa also praised DEP for taking early action to prevent polluted fracking water from being disposed of at local wastewater plants that weren't equipped to treat it, and said the Tomblin administration's emergency rules are a good first step.

"This is a rapidly evolving industry," Capacasa said. "It needs some new controls."

But Don Garvin, lead lobbyist for the West Virginia Environmental Council, said the emergency rules do nothing to help surface landowners and also called for Congress to eliminate fracking's injection permit exemption and several other federal environmental waivers passed as part of the Energy Policy Act of 2005.

"These changes weakened the previous safeguards against water pollution from oil and gas exploration contained in three of the major pieces of environmental law that protect our waters in the United States," Garvin said.

Monday's hearing also included appearances by all three of West Virginia's House members, and testimony from industry officials who touted the potential for thousands of new jobs and a major boost in domestic energy production.

"West Virginia is in a unique position of strength with this resources," said Scott Rotruck, vice president of Chesapeake Energy.

In response to a question from Rep. Nick J. Rahall, D-W.Va., Rotruck ranked the urgency for new state legislation on Marcellus drilling at 2 1/2 on a scale of 1 to 5, with 5 being the most urgent. Kevin West, managing director of EQT Corp., ranked the urgency at a 4, but not until the end of the 2012 regular session.

@tag:Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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