Sustained Outrage

WVDEP’s ‘rough and raw’ drilling legislation

Well site during active drilling to the Marcelllus Shale formation in Upshur County, West Virginia, in 2008. Photo copyright West Virginia Surface Owners Rights Organization.

Vicki Smith over at The Associated Press had the story the other day summarizing the latest draft of oil-and-gas drilling legislation under consideration by the West Virginia Department of Environmental Protection:

The Department of Environmental Protection wants natural gas companies to submit comprehensive water management plans, including lists of chemicals to be used, when applying for future permits to drill horizontal wells in the Marcellus shale field.

A 100-page draft of proposed legislation provided to The Associated Press late Friday shows the DEP wants companies to identify not only when, where and how much water they withdraw for drilling operations. The department also wants to know what chemicals companies use in hydraulic fracturing, how much wastewater they produce, and when and where they would dispose of the waste.

This is all part of a review of the WVDEP’s handling of oil and gas issues launched by agency Secretary Randy Huffman a while back.

I’ve had a couple of requests for copies of the draft legislation that Vicki wrote about, and WVDEP spokeswoman Kathy Cosco was kind enough last week to provide a copy to the Gazette. It’s not clear if WVDEP plans to post the document on the agency’s Web site. I asked Kathy about that and she told me:

This is a very rough draft of legislation DEP is trying to pursue. Because we expect it will change a few times before we actually submit it to the legislature, I don’t know if we will be posting it yet or not. I’ll have to get back to you on that.

So what the heck … I’ll just go ahead and post the 100-page document here.

Interestingly, Huffman had this to say in Vicki’s story about WVDEP providing copies of the document to the press:

“It’s very rare that we release proposed legislation in such a rough and raw format, but we didn’t want there to be an appearance of secrecy or lack of access,” Huffman told the AP, which had requested the documents.

By way of background, WVDEP officials are meeting periodically with a stakeholder group that is offering input to the agency about its oil and gas review and about potential legislative changes in how drilling is policed in West Virginia.  And, WVDEP has helpfully posted some documents from that review — including presentations from various stakeholders and some agendas from past meetings — on its Web site here.

But WVDEP is not publishing notices announcing future meetings in the State Register, and apparently does not consider the stakeholder meetings to be open to the general public or the media.

I asked Kathy about this, and she told me:

The task force meetings have not been placed on the register because they do not fall under the definition of a meeting that requires notice. It is not a “governing body of the agency for which a quorum is required in order to make a decision or to deliberate toward a decision or any matter which results in an official action.” The members of the task force provide expertise and information, but do not vote on anything.

Is WVDEP correct about this? You decide:

The public meeting and advance notice provisions of the state’s open meetings law apply to all “governing bodies” and that term is defined this way:

“Governing body” means the members of any public agency having the authority to make decisions for or recommendations to a public agency on policy or administration, the membership of a governing body consists of two or more members; for the purposes of this article, a governing body of the Legislature is any standing, select or special committee, except the commission on special investigations, as determined by the rules of the respective houses of the Legislature.

A “public agency” as used in that definition, is further defined this way:

“Public agency” means any administrative or legislative unit of state, county or municipal government, including any department, division, bureau, office, commission, authority, board, public corporation, section, committee, subcommittee or any other agency or subunit of the foregoing, authorized by law to exercise some portion of executive or legislative power.

I also asked Kathy what the harm would be in allowing the press or general public to attend the stakeholder meetings, and this is what she said:

The people who were selected to be on that taskforce were picked for their individual knowledge, experience, and expertise. Those nine people are being very frank and open in their communications with the DEP about what industry is capable of doing and perhaps should be doing. Having an audience, especially the media, would change the tone and tenor of these meetings entirely, and probably have a chilling effect.

We believe it is more important to the people of the state for the members of this task force to feel safe enough to engage in frank discussions that lead to progress than to have them withhold worthwhile information for fear it will be printed on the front page of the paper.

The people on this taskforce do not vote on anything, this is not a consensus-based process, and they are not making recommendations to the Secretary. These are simply fact-gathering meetings where DEP can seek information about oil and gas operations that may or may not aid us in drafting our legislation.