The West Virginia Department of Environmental Protection (“DEP”) released its report to the West Virginia Legislature in May on the study of “noise, light, dust and volatile organic compounds generated by the drilling of horizontal wells related to the well location restriction regarding occupied dwelling structures” (the “DEP Report”). The underlying study was conducted by the WVU School of Public Health which produced a 206-page report dated May 3, 2013 (the “Study”).

The legislative mandate set forth in W. Va. Code § 22-6A-12(a) directed DEP’s Office of Oil and Gas (“OOG”) to determine whether the well location restriction (625 feet from the center of a well pad) was “adequate or otherwise required alteration based on the noise, light, dust, and volatile organic compounds related to drilling horizontal wells.” While the Legislature requested a report on these issues by December 31, 2012, DEP had advised the Legislature that complications with the work to be performed resulted in delays; hence the report was submitted on May 28, 2013.

The long and short of the Study as reported by DEP is that “there are no indications of a public health emergency or threat based on the data obtained from this study.” Notwithstanding the absence of any violations of existing standards, the DEP Report with little explanation concludes:

DEP recommends that the Legislature reconsider the reference point (i.e., from the center of the well pad) for the location restriction to occupied dwellings to reduce potential exposures. One option to consider would be to establish a location restriction from the Limit of Disturbance (LOD) of the well pad to provide for a more consistent and protective safeguard for residents in affected areas.

The Study focused on seven well pads located in Brooke, Marion and Wetzel counties operated by three different companies. Approximately 46 days of field measurement occurred from July to October 2012. The locations included residences located between 250 to 1,250 feet from the center of the well pad. The well pad locations included wild life management area, abutted into a hillside, atop ridgelines and in a hollow with channeled air flow. The DEP Report notes that “not all of the air monitoring equipment operated at every site for the complete duration of the monitoring, due to weather-related events, equipment malfunction and maintenance, and miscommunication with well pad operators.”

More specifically, the DEP Report explains that the Study found:

     (a)     “radiation levels for alpha and beta sources were well below established background levels in air;”
     (b)     “noise assessment levels indicated average levels were below the United States Environmental Protection Agency’s guideline of 70 decibels;”
     (c)     light data “indicate there was no impact on nighttime illumination from well pad activities;”
     (d)     all dust test results were below the 24-hour National Ambient Air Quality Standards for particulate matter less than 2.5 microns in diameter; and
     (e)     benzene levels at some well pads were above the benchmark Agency for Toxic Substances and Disease Registry Minimum Risk Level. However, the Study notes that this risk level is to be applied to long term exposures (and not the short duration periods associated with well drilling activities).

In connection with its recommendation to revisit well location distance calculations, DEP references a literature review in the Study of other state programs well location restrictions (Study Appendix E), but DEP fails to recognize that some of the references cited govern well spacing requirements and are not applicable to the distance a well is from dwellings. The DEP’s suggestion that the distance calculation be based on the LOD of a well site simply fails to adequately isolate and identify the cause of the perceived problems which would appear to be a prerequisite to developing a proposed remedy. For example if the source of noise or diesel fumes is an idling truck not located on the well pad, then the suggested remedy may not improve the conditions at a dwelling.

DEP identified other topics that may receive more attention than in the past. For example, the DEP Report explains that OOG “already works with individual operators and companies on a case-by-case basis to facilitate discussion and resolve citizen complaints” and that inspectors “will continue work with operators to deploy sound mitigation measures, such as sound barriers, based on site specific circumstances.” The Report also notes that “[d]ue to the transient nature and/or frequency of sound, the agency recognizes that noises may be perceived as a nuisance, even though measurements indicate no harm.”

The DEP also suggests that “[w]hile there are no indications of immediate danger to public health based on data obtained from this study, vehicle traffic associated with well pad development activities may pose a nuisance.”

DEP acknowledged that the Study was not designed to and did not attempt to determine the precise source or cause for any particular test results. In fact the Study recognizes that a “health effects-based setback distance proposal might require a study with a lengthy (3 years or more) sampling effort, greater detail in the chemical analysis, a larger number of sites and some effort to assure that the sites represent a range of exposures that a typical population could experience.”

Because the Study may be considered by the Legislature in the context of modifications to the Horizontal Well Act, it deserves careful review. Recommendations include: (i) a more definitive sampling and health effects study to address the issues of potential exposures from gas drilling to the people in the State; (ii) better use of roadway wetting agents to reduce many of the peak dust exposures seen from roadside samples; and (iii) noise reduction, particularly from traffic, may be abated by sound barriers, vegetation, sound insulation of buildings and noise attenuation measures. We may be hearing more about these issues and other information from the Study in the coming weeks and months and the members of IOGAWV will want to be prepared to address these various issues when the opportunities arise.