Sustained Outrage

Oil and gas drillers object to higher permit fees

Here’s the latest from Vicki Smith at The Associated Press:

MORGANTOWN, W.Va. — Two groups that represent natural gas drillers say permit fees a legislative subcommittee is proposing for Marcellus shale wells are astronomically high and “an absolute deal-stopper” that could discourage or even cripple the fast-growing industry.

The West Virginia Oil and Natural Gas Association and the state’s Independent Oil & Gas Association also object to proposed restrictions on drilling locations that they believe are based on opinion and speculation rather than science — or simply cut and pasted from laws on the books in other states.

“I stopped reading when I got to ‘the waters of the commonwealth,”’ said Corky DeMarco, executive director of WVONGA.

Pennsylvania and Virginia are called commonwealths. West Virginia is a state.

The 90-page draft bill presented to members of a joint judiciary subcommittee earlier this week would impose four permit fees ranging from $5,000 to $15,000 per well, as well as individual performance bonds of $25,000 per well.

The permit fees include $15,000 for the initial application, $10,000 to modify an existing permit, $5,000 for annual renewals and a $15,000 reclamation fee that would be required before any permit is issued.

“That level of permitting is an absolute deal-stopper. It could shut the industry down in the state,” IOGA director Charlie Burd said.


The fees are “astronomical increases” over the roughly $600 drillers now pay for conventional shallow well permits, Burd said, and many times what other states charge drillers of the deep, unconventional Marcellus wells.

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Jackson Kelly black lung lawyer suspended

Breaking news from the West Virginia Supreme Court of Appeals: Douglas A. Smoot, a lawyer with Jackson Kelly‘s black lung practice, has been suspended from practicing law for one year for withholding evidence from a retired miner seeking black lung benefits.

You can read the opinion, authored by Chief Justice Robin Davis, here, and previous coverage here, here and here.

Smoot had conceded that he had withheld the “narrative summary” portion of a doctor’s report from Elmer Daugherty, a retired miner who spent 42 years underground who was representing himself at the time. Smoot contended that the doctor’s narrative summary was “equivocal,” so he disclosed only the “objective” portion, the tests and X-rays, and that dissembling doctors’ reports was common practice within the black lung world.

After oral arguments in September, the justices concluded that Smoot unlawfully altered a document having potential evidentiary value.

[I]t is clear that Dr. Zaldivar’s narrative report had potential evidentiary value insofar as the report included a summary of Dr. Zaldivar’s finding that Mr. Daugherty suffered from complicated pneumoconiosis, which finding was sufficient to trigger an irrebuttable presumption that Mr. Daugherty was totally disabled.

The opinion rejected Smoot’s assertion that such conduct was common practice:

[W]e find the weight of the evidence in this case commands the opposite conclusion. For example, [Administrative Law Judge] Lesniak repeatedly expressed his shock and dismay with regard to Mr. Smoot’s failure to submit Dr. Zaldivar’s entire report. Indeed, in an order remanding the case to the District Director, ALJ Lesniak declared,

I find the separating of Dr. Zaldivar’s May 16, 2001 narrative to be unconscionable and reprimand the attorney or attorneys responsible; this was a deliberate attempt to mislead the Claimant, I expected more from this law firm. I find their defense of this practice (withholding Dr. Zaldivar’s narrative, which was surely detrimental to Westmoreland’s case) to be ludicrous. I admonish the attorneys involved not to tamper with exhibits, potential exhibits and/or any type of documents which may be entered into evidence in the future.

Davis’ opinion also concluded: “[W]e have little difficulty concluding that Mr. Smoot’s conduct was deceitful, dishonest, a misrepresentation, and prejudicial to the administration of justice, and thus, amounted to a violation of Rules 8.4(c) and (d).”

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The U.S. Department of Labor’s Occupational Safety and Health Administration just announced it has fined the Postal Service $287,000 for alleged safety violations at a mail processing facility in Bluefield, W.Va.

According to an OSHA news release:

OSHA initiated an inspection in May in response to a complaint alleging the hazards. Inspectors cited the Postal Service with four willful violations carrying a penalty of $280,000 and one serious violation with a penalty of $7,000.

The willful violations cite the facility’s failure to label electrical cabinets, properly train employees, use safety-related work practices when exposed to energized electrical parts and provide proper electrical protective equipment. OSHA defines a willful violation as one committed with plain indifference to or intentional disregard for employee safety and health.

The serious citation was issued for allowing an unauthorized employee to perform inspections. OSHA issues a serious citation when there is substantial probability that death or serious physical harm could result and the employer knew, or should have known, of the hazard.

OSHA chief David Michaels said:

These citations and sizable fines reflect the Postal Service’s failure to ensure that the proper safety practices were being used by employees working with live electrical parts, leaving them vulnerable to multiple hazards. The Postal Service knew that proper and effective training was needed for the safety of its workers but did not provide it.

This is the second Postal Service facility in West Virginia to be hit with major fines in the last month. In mid-October, OSHA fined a facility in Huntington $212,500 for similar sorts of problems.


As we’ve previously noted:

The U.S. Department of Labor has filed an enterprise-wide complaint against the U.S. Postal Service for electrical work safety violations. The complaint asks the Occupational Safety and Health Review Commission to order the Postal Service to correct electrical violations at all its facilities nationwide. This complaint marks the first time OSHA has sought enterprise-wide relief as a remedy.

EPA adds C8 to endocrine distruptor screening list

The U.S. Environmental Protection Agency announced earlier today that it was adding two perfluorindated compounds to the list of chemicals that will be screened for their potential to be endocrine disruptors.

EPA said that its latest list of 134 chemicals to be screened includes Perfluorooctanoic acid, or PFOA or C8, and Perfluorooctane sulfonic acid, or PFOS. As EPA explained in its press release:

Endocrine disruptors are chemicals that interact with and possibly disrupt the hormones produced or secreted by the human or animal endocrine system, which regulates growth, metabolism and reproduction.

EPA Administrator Lisa P. Jackson said:

Endocrine disruptors represent a serious health concern for the American people, especially children.  Americans today are exposed to more chemicals in our products, our environment and our bodies than ever before, and it is essential that EPA takes every step to gather information and prevent risks.

We are using the best available science to examine a larger list of chemicals and ensure that they are not contaminating the water we drink and exposing adults and children to potential harm.

A new report out this morning raises some interesting questions about the way West Virginia writes rules and regulations to govern everything from coal mining pollution to drug company marketing expenditures.

The discussion of West Virginia rulemaking is part of a broader, national examination of rulemaking in states around the country. The report, 52 Experiments with Regulatory Review: The Political and Economic Inputs into State Rulemakings, was put together by the New Y0rk University School of Law’s Institute for Policy Integrity.

Regarding West Virginia’s rulemaking procedures, the report concludes:

West Virginia’s regulatory review scheme concentrates virtually all regulatory power in the hands of the Legislature. While the arrangement is designed to ensure that regulatory decisions are made by democratically accountable legislators, the system often seems to take regulatory power away from independent agencies experts and exposes the rulemaking process to political influence.

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A silver lining on judicial confirmations?

Writing for Talking Points Memo, Brian Beutler thinks that Republicans taking control of the House could have a positive impact on President Obama’s nominees.

Beutler suggests that without much legislation coming out of the House to occupy the Senate’s time, Senate Majority Leader Harry Reid (D-Nev.) can schedule votes for pending candidates for federal judgeships and administration posts.

[W]hile the House passes legislation the Senate has no interest in considering, Majority Leader Harry Reid will have much more time, if he chooses, to devote to confirming a large backlog of Obama’s judicial and executive branch nominees — particularly numerous non-controversial picks, who will have to be renominated next year.

That’s certainly what advocates would like to see.

“Reid should concentrate Floor time on must pass bills, message and other votes that highlight differences and important matters that are or should be non-controversial, including confirming lifetime federal judges,” Glenn Sugameli, an advocate for swift judicial confirmations, tells TPM. “All of Obama’s nominees to circuit and district courts have had the support of their home-state Republican and Democratic senators and the vast majority have been non-controversial nominees who have been approved by the Judiciary Committee without objection and approved unanimously when they finally receive usually long-delayed Floor votes.”

“If one or more Republican senators force cloture votes on consensus nominees, they will accurately be seen as mindlessly obstructionist,” Sugameli says. “If they do not, nominees will be confirmed quickly.”

However, scheduling and holding floor votes still takes time, and there don’t seem to be any indications that GOP senators will any more accommodating with a 47-seat minority than they were with a 41-seat minority. The TPM piece continues:

That’s not to say that scores of judicial vacancies will be filled immediately, or that President Obama will (finally) see his executive branch fully staffed. Democrats will have a much smaller majority of 53 Senators, and any single Republican will be able to force Democrats to round up 60 votes and spend nearly a week of floor time to get a nominee confirmed.

“I would remind you that actions have consequences and we’re going to have to deal with what the House sends us and, at the other end, it’s three days plus [per filibuster] and all the days add up,” says Reid spokesman Jim Manley.

But one of the biggest hurdles nominees faced this year was a thick legislative agenda: they were literally crowded out by the sheer volume of routine, emergency, and history-making legislation. Next year that won’t be an issue. And that has some advocates seeing a silver lining around the midterm election results.

Hmm. I may be a big fan of Monty Python, but I don’t think I’m ready to start singing along just yet, particularly given that Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, just published this call for the restoration of bipartisanship and civility on

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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.

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NY’s former top environmental official talks fracturing

Today’s must-read is an interview by ProPublica’s Marie C. Baca with Pete Grannis, who, until he was fired last month, was commissioner of New York State’s Department of Environmental Conservation. While in office, Grannis created the first fracturing chemical disclosure rules in the country.

With some of the northernmost reaches of the Marcellus shale formation located in New York, Grannis has dealt with many of the same issues confronting regulators in West Virginia. (See previous coverage here, here, here, here and here.)

Here are a few questions and answers, but I encourage anyone interested to read the entire interview, which occurred over two sessions.

What was it like to balance two mandates from the state: to protect New York’s environment, and to develop those resources for profit?

Well, there are obviously pressures on both sides. My job as a regulator was to make sure that legal activity took place in a way that didn’t harm the environment. We really committed huge resources to making sure that if this process is to proceed it will be done safely. … We were very clear that we weren’t going to rush ahead and then wonder if we did it right later on.

But in the summer of 2008, the DEC seemed prepared to issue permits for hydraulic fracturing without exploring the possibility of water contamination or having a clear idea of how drillers would treat the wastewater.

That is not true. Right from the beginning we understood that this issue required additional review. We were under no obligation to push for something beyond the generic environmental impact statement, but we felt like it was the right thing to do. Some of the accusations you’re talking about have been extraordinary, but the truth is that the department has a phenomenal track record of regulating drilling, and we’ve set the most stringent standards in the country for hydraulic fracturing.

Was there ever a time when you felt the dual mandates from the state created a conflict for you?

For most of my environmental stakeholders, the people I know and work with, there was near-universal condemnation of the possibility of drilling. I felt tremendous pressure from friends and colleagues to make sure this was done right. On the other hand, the landowners in some of these poor communities across the southern tier saw [drilling] as a salvation. They were sold a bill of goods that their payments were contingent upon drilling activities beginning sooner. They were putting pressure on us, the administration and their local legislators, to move more quickly. But I never thought of it as a real conflict. I knew very clearly what our responsibilities were. I knew there was this divide between the fact that this was a legal activity and the fact that it has considerable disruptive potential. This drilling is an unattractive, disruptive, commercial activity with requirements that need to be met. I was never in any doubt that if we found a path forward it would be in a way that didn’t affect the environment.

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Secret meetings, November 12, 2010

Today’s issue of The State Register contains two meetings that violated the public notice requirements of the West Virginia open meetings law.

The agencies involved were the Workforce Investment Board and the GOHELP (Governor’s Office of Health Enhancement and Lifestyle Planning) advisory committee.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

What we’re reading: Veterans Day edition

Today we join with the rest of the country in honoring the men and women who have served in the military, as well as those who continue to serve.

The number of women veterans who are homeless has doubled over the last decade to 6,500, NPR reported. Most of them are under the age of 35, an indication of how many women are serving in Iraq and Afghanistan. Re-acclimating to civilian life can be difficult, and sometimes female veterans are hesitant to turn to the male-dominated Veterans’ Administration for help. “The groups that [the VA] did have around the area were almost all men,” one female veteran told NPR. “And most of them did not believe that women were combat veterans. Most of them didn’t believe women were veterans period — that we don’t serve that much of a purpose in the military. And definitely in a combat zone.”

A year in Afghanistan spent detecting bombs has given members of Oregon Army National Guard’s 162nd Engineer Company a new appreciation of life, as this story in the Oregonian illustrates. On one day in March, two sergeants survived explosions from four separate improvised explosive devices, or IEDs. Both Staff Sgt. Joe Seeger and Sgt. Brandon Bertilson were awarded the Bronze Star. The article notes: “Among the 222 awards members of the unit received were 62 Army Commendation Medals, four mechanics badges, five Purple Hearts and 14 Bronze Stars.”

Vanity Fair profiled Staff Sgt. Salvatore Giunta, the first living recipient of the Medal of Honor since Vietnam, in its December issue. As a member of the 173rd Airborne Brigade Combat Team, First Platoon, Battle Company, in Afghanistan in October 2007, Giunta saw two enemy combatants carrying off his close friend, Sgt. Josh Brennan. Giunta shot and killed one of the men and wounded the other, rescuing his friend, who had been hit eight times and died at a U.S. base the next day. Says Giunta: “Every single person that I’ve been with deserves to wear it, deserves to . . .They are just as much of me as I am. This isn’t a one-man show.”

Near the Kandahar Air Field, soldiers play hockey, substituting sneakers and a ball for skates and a puck, Stars and Stripes reported. The rink, which was completed in 2006 mostly by Canadian engineers, has a floor rather than ice, and has become a central park of non-combat life for many serving in Kandahar. There is now a Kandahar Hockey League, with two four-month seasons a year. Out of 24 teams, only one is made up of American soldiers, with most of the others composed of Canadians. But the rink and the league has attracted attention from the rest of the hockey world: Last spring, former National Hockey League players brought the Stanley Cup for a visit.