Category Archives: Hydraulic Fracturing and Marcellus

Items related to the water-supply, wastewater, groundwater, or stream-impact issues associated with the hydraulic-fracturing, or “fracking,” method of drilling for natural gas; focus primarily is on the Marcellus shale formation that underlies parts of New York, Pennsylvania, Ohio, West Virginia, Maryland, and Virginia.

On Virginia Water Radio for 8-7-17: Proposed Gas Pipelines and Water Quality Issues

Virginia Water Radio’s episode for the week of August 7, 2017, is “Natural Gas Pipelines, Water Resources, and the Clean Water Act.”  The 5 min./10 sec. episode, available online at http://www.virginiawaterradio.org/2017/08/episode-380-8-7-17-natural-gas.html, gives an overview of the water resources potential affected by the proposed Atlantic Coast and Mountain Valley gas pipelines, plus an introduction to the Clean Water Act Section 401 Water Quality Certification process, the subject of public comment/public hearings in Virginia from August 7-14, 2017.


Virginia Water Radio’s is a weekly broadcast/podcast produced by the Virginia Water Resources Research Center.  The home page is http://www.virginiawaterradio.org.  Have a listen or two!

Final Environmental Impact Statement for Proposed Atlantic Coast Natural Gas Pipeline Issued by FERC on July 21, 2017

On July 21, 2017, the Federal Energy Regulatory Commission (FERC) staff issued its Final Environmental Impact Statement (EIS) for the proposed Atlantic Coast Pipeline project.  That document is available online at https://www.ferc.gov/industries/gas/enviro/eis/2017/07-21-17-FEIS.aspFERC’s overview of the document is copied below.

Following are links to several news accounts of the release of the Final EIS:
Environmental report on pipeline favorable for developers, Associated Press, as published by Richmond Times-Dispatch, 7/21/17.
One pipeline through VA clears hurdles; another in PA gets fined for violations, Bay Journal, 7/23/17.
Release of final analysis paves way for decision on proposed Atlantic Coast Pipeline, Nelson County Times, 7/21/17.
Pipeline environmental statement: Most impacts will be ‘reduced to less-than-significant levels’, Richmond Times-Dispatch, 7/21/17.
Final environmental statement on pipeline released, Waynesboro News Virginian, 7/21/17.

For information on the Final EIS for the proposed Mountain Valley Pipeline (issued in June 2017), please see this Water Central News Grouper post.

For information on natural gas developments in Virginia overall since 2014, please see this Water Central News Grouper post.

FERC’s OVERVIEW AND MAIN CONCLUSIONS OF THE FINAL EIS
Accessed at https://www.ferc.gov/industries/gas/enviro/eis/2017/07-21-17-FEIS.asp on 7/25/17.

FERC Staff Issues Final Environmental Impact Statement for the Atlantic Coast Pipeline and Supply Header Project (CP15-554-000, -001; CP15-555-000; and CP15-556-000)
Issued: July 21, 2017

The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared a final environmental impact statement (EIS) for the projects proposed by Atlantic Coast Pipeline, LLC (Atlantic) in Docket Nos. CP15-554-000 and CP15-554-001; Dominion Energy Transmission, Inc. (DETI) in Docket No. CP15-555-000; and Atlantic and Piedmont Natural Gas. Co., Inc. (Piedmont) in Docket No. CP15-556-000.

Atlantic seeks a Certificate of Public Convenience and Necessity (Certificate) from the Commission under section 7(c) of the Natural Gas Act (NGA) and Parts 157 and 284 of the Commission’s regulations to construct, operate, and maintain 333.4 miles of 42-inch-diameter mainline pipeline; 186.3 miles of 36-inch-diameter mainline pipeline; 83.4 miles of 20-inch-diameter lateral pipeline; 1.4 miles of 16-inch-diameter lateral pipeline; 3 new compressor stations totaling about 130,348 horsepower (hp); 9 meter and regulating (M&R) stations; 11 pig launcher and receiver facilities; and 41 valves in West Virginia, Virginia, and North Carolina as part of its proposed Atlantic Coast Pipeline (ACP). The purpose of ACP is to deliver up to 1.5 billion cubic feet per day of natural gas to customers in Virginia and North Carolina.

DETI seeks a Certificate from the Commission under sections 7(b) and 7(c) of the NGA and Parts 157 and 284 of the Commission’s regulations to construct, operate, and maintain 37.5 miles of 30-inch-diameter pipeline; one M&R station; six valves; and four pig launcher or receiver facilities; and modify four existing compressor stations to provide an additional 69,200 hp in Pennsylvania and West Virginia as part of its proposed Supply Header Project (SHP). DETI is also requesting authorization to abandon in place two existing gathering compressor units at its existing Hastings Compressor Station in Wetzel County, West Virginia. The purpose of SHP is to provide customers access to the Dominion South Point hub in Pennsylvania along with other interconnecting natural gas suppliers, which allows access to multiple gas suppliers and markets to facilitate access to low cost natural gas.

Atlantic and Piedmont seek a Certificate from the Commission under section 7(c) of the NGA and Part 157 of the Commission’s regulations to lease capacity on Piedmont’s existing pipeline distribution system as part of their Capacity Lease Proposal. The purpose of the Capacity Lease Proposal is to provide service to North Carolina markets using additional transportation capacity on the Piedmont system. Because ACP, SHP, and the Capacity Lease Proposal are interrelated and connected actions, we analyzed them together in a single comprehensive EIS.

The EIS has been prepared in compliance with the requirements of the National Environmental Policy Act (NEPA), under the Council on Environmental Quality regulations for implementing NEPA (40 Code of Federal Regulations [CFR] Parts 1500–1508), and the FERC’s regulations at 18 CFR 380.

The conclusions and recommendations presented in the EIS are those of the FERC environmental staff. Input from the U.S. Department of Agriculture – Forest Service (FS), U.S. Army Corps of Engineers (USACE), U.S. Environmental Protection Agency (EPA), U.S. Fish and Wildlife Service (FWS), West Virginia Department of Environmental Protection, and West Virginia Division of Natural Resources as cooperating agencies was considered during the development of the conclusions and recommendations in the EIS. The FS may adopt and use the EIS when it considers the issuance of a Special Use Permit to Atlantic for the portion of ACP that crosses the Monongahela National Forest and George Washington National Forest, and amendments to Land and Resource Management Plans to allow Atlantic to cross the forests. The cooperating agencies will present their own conclusions and recommendations in their respective permit authorizations and/or Record of Decision for the projects.

The FERC staff concludes that construction and operation of ACP and SHP would result in some adverse effects, such as impacts on steep slopes and adjacent waterbodies and associated aquatic resources; forested vegetation; Endangered Species Act (ESA)-listed Indiana bat, northern long-eared bat, Roanoke logperch, Madison cave isopod, clubshell mussel, small whorled pogonia, and running buffalo clover; and karst, cave, subterranean habitat and the species associated with these habitats. Implementation of Atlantic and DETI’s respective impact avoidance, minimization, and mitigation measures, as well as their adherence to staff’s recommendations in the EIS would further avoid, minimize, and mitigate these impacts. Most, but not all of these impacts, would be reduced to less-than-significant levels. These determinations are based on a review of the information provided by Atlantic and DETI in their applications to the FERC and supplemental filings in response to staff’s environmental information requests; field investigations; scoping; literature research; alternatives analyses; and consultations with federal, state, and local agencies, and other stakeholders. Although many factors were considered in our determinations, the principal reasons are [the following]:
*Atlantic and DETI would minimize impacts on the natural and human environments during construction and operation of their facilities by implementing the numerous measures described in their respective construction and restoration plans;
*all of the proposed facilities would be constructed and operated in compliance with federal standards, requirements, and thresholds including U.S. Department of Transportation materials requirements and EPA air emissions standards;
*Atlantic would complete a Construction, Operation, and Maintenance Plan that includes additional measures to minimize impacts on environmental resources on National Forest System lands, and the FS’ Special Use Permit process for Atlantic’s easement over federal lands would provide terms and conditions for construction and operation;
*a high level of public participation was achieved during the pre-filing and post application review processes and helped inform our analysis;
*environmental justice populations would not be disproportionately affected by the projects;
*Atlantic and DETI would implement a steep slope management program and slip avoidance, identification, prevention, and remediation plan to minimize erosion and landslide potential in steep slope areas;
*the horizontal directional drill crossing method would be utilized for most major waterbodies, the majority of other waterbodies would be crossed using dry crossing methods, and Atlantic and DETI would be required to obtain applicable permits and provide mitigation for unavoidable impacts on waterbodies and wetlands through coordination with the USACE and state regulatory agencies;
*the FERC staff would complete the process of complying with the ESA prior to any construction, and the FWS would issue biological opinions that include additional conservation measures, as needed, to assure that ACP and SHP would not jeopardize the continued existence of any species under their jurisdiction and would not adversely modify or destroy designated critical habitat;
*the FERC staff would complete the process of complying with section 106 of the National Historic Preservation Act and implementing the regulations at 36 CFR 800 prior to allowing any construction to begin; and
*environmental inspection and monitoring programs would ensure compliance with all construction and mitigation measures that become conditions of the FERC authorizations and other approvals.

In addition, the FERC staff and cooperating agencies developed site-specific mitigation measures that Atlantic and DETI should implement to further reduce the environmental impacts that would otherwise result from construction and operation of their projects. The FERC staff determined that these measures are necessary to reduce the adverse impacts associated with the projects, and in part, are basing conclusions on implementation of these measures. These additional measures are listed as recommended conditions in section 5.2 of the EIS.

Va. Supreme Court on July 13, 2017, Upholds State Law on Surveying for Natural Gas Pipeline Routes Without Landowner Permission

On July 14, 2017, the Virginia Supreme Court unanimously upheld the Commonwealth’s law that allows surveying for potential natural gas pipelines without landowner permission, so long as specified notification procedures are followed.  The ruling was in a case brought by Hazel Palmer, a landowner in Augusta County, whose property is on the path of the proposed Atlantic Coast Pipeline.  Ms. Palmer was appealing a ruling by the Augusta County Circuit Court, which also upheld the state law.  The Va. Supreme Court court also ruled that surveying companies must be more specific in their notification to landowners of the date for survey activities than is provided by the wording of “on or after” a certain date.  The case is Hazel F. Palmer v. Atlantic Coast Pipeline LLC; the ruling is available online (as a PDF) at http://www.courts.state.va.us/opinions/opnscvwp/1160630.pdf.

As of July 2017, another lawsuit on the state’s gas pipeline surveying law–asserting that gas pipeline surveying activity without landowner permission is an unconstitutional “taking” of personal property–is on appeal at the U.S. Court of Appeals for the Fourth Circuit (in Richmond).

Sources:
Pipelines: Va. Supreme Court upholds gas survey law on entering private property, but requires specific notice to landowners, Richmond Times-Dispatch, 7/13/17.
Virginia Supreme Court ruling upholds pipeline surveying law; challenges still possible, Roanoke Times, 7/13/17.
Supreme Court of Virginia hands pipeline foes small victory, but project rolls on, Washington Post, 7/13/17.

For more details on developments about natural gas in Virginia, please see this Water Central News Grouper post.

Public Comment Period and Hearings by Va. DEQ for 401 Certification Process Related to Proposed Mountain Valley and Atlantic Coast Natural Gas Pipelines: Comment Period July 3-August 22, 2017; Hearings in August 2017

On June 30, 2017, the Virginia Department of Environmental Quality (DEQ) announced the public comment period and a series of public hearings on the 401 certification process for water-resources impacts of the proposed Mountain Valley and Atlantic Coast pipelines.  “401” refers to the relevant section of the federal Clean Water Act.

According to the DEQ’s news release on the public comment period,  “The documents on which DEQ is seeking comments…referred to as 401 certifications…will place conditions on activities in upland areas that are near state waters and that may indirectly affect state water along the pipeline routes.  These certifications are in addition to the requirements imposed by the Federal Energy Regulatory Commission, by the Commonwealth of Virginia for stormwater, erosion and sediment control, and by the U.S. Army Corps of Engineers for wetlands and streams.  The conditions address, among other matters, impacts to public water supplies; engineering and best management practices for steep slopes and slide-prone areas; environmental monitoring and inspections; and development and implementation of plans and procedures for karst mitigation, spill prevention control, water quality monitoring, and protection of riparian buffers.”

The public comment period will run July 3-August 22, 2017.

The public hearing schedule is as follows:
Atlantic Coast Pipeline
— August 7, 2017, from 6 to 10 p.m. — James Madison University, Festival Conference and Student Center, Grand Ballroom, 1301 Carrier Drive, Harrisonburg, VA 22807.  Parking is in Lots C11, C12, and D3.

— August 10, 2017, from 6 to 10 p.m. — Longwood University, Jarman Auditorium, 201 High St., Farmville, VA 23901.  Parking is in Wheeler Lot, Crafts Lot, High Street Lot, Randolph Lot or other university-owned lots.

— August 14, 2017, from 6 to 10 p.m. — Dinwiddie High School Auditorium, 11501 Boisseau Road, Dinwiddie, VA 23841.  Parking is only in designated areas on school property.

Mountain Valley Pipeline
— August 8, 2017, from 6 to 10 p.m. — Radford University, Preston/Bondurant Auditorium, 801 East Main St., Radford, VA 24142.  Parking is only in Lot A, or Lots E and U.

— August 9, 2017, from 6 to 10 p.m. — Chatham High School Auditorium, 100 Cavalier Circle, Chatham, VA 24531.  Parking is only in designated areas on school property.

Also, on August 10, 2017, the DEQ will attend an informal public meetings at 1 p.m.  at the Newport Community Center, 434 Bluegrass Trail in Newport (Giles County), and at 5 p.m. at Cave Spring High School, 3712 Chaparral Drive in the City of Roanoke.  These meetings are being organized by Virginia House of Delegates members Greg Habeeb and Joseph Yost.  Verbal comments at these meetings won’t be recorded or considered submitted.

Sources:
Public comment period and public hearings scheduled on draft water quality certifications for proposed natural gas pipelines, Virginia Department of Environmental Quality News Release, 6/30/17).
DEQ agrees to add informal meetings on Mountain Valley Pipeline, Roanoke Times, 7/18/17.
Virginia Department of Environmental Quality, “Water Protection for Pipelines,” online at http://www.deq.virginia.gov/Programs/Water/ProtectionRequirementsforPipelines.aspx.

For more details on developments around the DEQ’s 401 certification process for the proposed pipelines, please see this Water Central News Grouper post.

News Accounts of the Public Hearings

Atlantic Coast project:
Pipeline meeting draws project supporters, opponents, WHSV TV-Harrisonburg, 8/8/17.
Hundreds attend DEQ hearing in Harrisonburg on Atlantic Coast Pipeline, Lynchburg News & Advance, 8/8/17.
Pipeline opponents demand action from state at DEQ hearing, News Leader, 8/8/17.
At Pipeline Hearings, Voices of Protest and Support, WMRA FM-Harrisonburg, 8/7/17.

Mountain Valley project:
Public hearing in Radford on environmental impacts of Mountain Valley Pipeline, WSLS TV-Roanoke, 8/9/17.
Pipeline proponents, opponents sound off at public hearing in Radford, Roanoke Times, 8/8/17.
Dozens speak out for and against MVP water regulations, WDBJ TV-Roanoke, 8/8/17.

IMG_1041
August 8, 2017, Virginia Department of Environmental Quality public hearing at Radford University.

Final Environmental Impact Statement for Proposed Mountain Valley Natural Gas Pipeline Issued by FERC on June 23, 2017

On June 23, 2017, the Federal Energy Regulatory Commission (FERC) staff issued its Final Environmental Impact Statement (EIS) for the Mountain Valley Project.  A summary of that document and access to the full document are available online at https://www.ferc.gov/industries/gas/enviro/eis/2017/06-23-17-FEIS.asp (as of 6/27/17).  An excerpt of the Final EIS summary is given below in this post.

According to that summary, the Final EIS concludes “construction and operation of the projects would result in some adverse environmental impacts.  In the case of the clearing of forest, effects may be long-term and significant.   However, for most other environmental resources, effects should be temporary or short-term, and impacts would be reduced to less-than-significant levels with the implementation of the applicants’ proposed mitigation measures and the additional measures recommended in the EIS.”

Mountain Valley Pipeline LLC and Equitrans LP have proposed the approximately 300-mile Mountain Valley Pipeline from West Virginia to a connection at Chatham, in Pittsylvania County, Va., with the existing Transcontinental, or Transco, pipeline, which runs from Texas to New York.

The release of the Final EIS starts a 90-day process for other federal agencies to review the project to determine whether or not certain federal permits should be issued.  FERC commissioners will determine whether or not to issue the project a certificate of public convenience and necessity.  As of June 27, FERC had only two commissioners and lacked a quorum for votes; two commissioners nominated by President Donald Trump were awaiting Senate confirmation.

Additional source:
FERC’s final environmental impact statement for Mountain Valley Pipeline elicits controversy, Roanoke Times, 6/23/17.

For more on this and other natural-gas issues and developments in Virginia, please see the Water Central News Grouper post, Natural Gas Drilling and Transport in Virginia under Close Scrutiny in 2014-16.

Excerpt from the Summary of the Final EIS
(accessed on https://www.ferc.gov/industries/gas/enviro/eis/2017/06-23-17-FEIS.asp, 6/27/17; bolding added)
“The FERC staff concludes that construction and operation of the projects would result in some adverse environmental impacts.  In the case of the clearing of forest, effects may be long-term and significant.  However, for most other environmental resources, effects should be temporary or short-term, and impacts would be reduced to less-than-significant levels with the implementation of the applicants’ proposed mitigation measures and the additional measures recommended in the EIS.  This determination is based on a review of the information provided by Mountain Valley and Equitrans in their applications to the FERC and supplemental filings in response to staff’s environmental information requests; field investigations; scoping; literature research; alternatives analyses; and consultations with federal, state, and local agencies, and other stakeholders.  Although many factors were considered in this determination, the principal reasons are:
*Mountain Valley would implement the measures outlined in the FERC’s Upland Erosion Control, Revegetation, and Maintenance Plan (Plan), its project-specific Wetland and Waterbody Construction and Mitigation Procedures (Procedures).

*In addition, Mountain Valley would implement the measures outlined in its various resource-specific mitigation plans filed with its application to the FERC, or included in various supplemental filings, including its Karst Mitigation Plan and Karst-specific Erosion and Sediment Control Plan to reduce impacts when crossing karst terrain; its Landslide Mitigation Plan for reducing impacts when crossing steep topography; its Mining Area Construction Plan to reduce impacts when crossing coal mine areas; its Blasting Plan to reduce impacts when crossing areas of shallow bedrock; its Organic Farm Protection Plan to reduce impacts when crossing organic farms; its Water Resources Identification and Testing Plan, Spill Prevention Controls and Countermeasures Plan (SPCCP), and Unanticipated Discovery of Contamination Plan to reduce impacts on water resources; its Compensatory Wetland Mitigation Plan to mitigate for the conversion of forested wetlands to shrub or herbaceous wetlands; its Migratory Bird Habitat Conservation Plan and Exotic and Invasive Species Control Plan to reduce impacts on birds, other animals, and plants; its Fire Prevention and Suppression Plan to reduce the chance of wildfires; its Traffic and Transportation Management Plan to reduce impacts on local road users; its Fugitive Dust Control Plan to reduce air quality impacts during construction; and its Winter Construction Plan. As indicated in the EIS, we have reviewed these plans and determined that they are acceptable.

*Equitrans would follow its project-specific Plan and Procedures, its Erosion and Sediment Control Plan for the Redhook Compressor Station, and the Pennsylvania Department of Environmental Protection’s Erosion and Sediment Pollution Control Program Manual.

*In addition, Equitrans would implement the measures outlined in its various resource-specific mitigation plans filed with its application to the FERC, or included in various supplemental filings, including its Mine Subsidence Plan to protect its pipelines while crossing abandoned coal mine areas; it project-specific SPCCP and Preparedness, Prevention, and Contingency and Emergency Action Plan to reduce potential impacts on water resources; its Horizontal Directional Drill Contingency Plan to handle a failure or frac-out while crossing under the Monongahela River and South Fork Tenmile Creek; its Migratory Bird Conservation Plan to minimize impacts on bird species of concern; and its Traffic and Transportation Management Plan to reduce impacts on other local road users. As indicated in the EIS, we have reviewed these plans and determined that they are acceptable.

*Mountain Valley and Equitrans would use mostly dry open-cut methods to cross sensitive waterbodies and coldwater fisheries during state-mandated construction windows. Mountain Valley and Equitrans would obtain permits from the COE and applicable state resource agencies prior to crossing waterbodies and wetlands.

*For the portion of the MVP within the Jefferson National Forest, Mountain Valley would follow the measures outlined in its FS-approved Plan of Development.

*The FERC staff would complete formal consultations with the FWS under Section 7 of the Endangered Species Act prior to allowing any construction to begin that could adversely affect federally listed threatened or endangered species.

*The FERC staff would complete the process of complying with the National Historic Preservation Act prior to allowing any construction to begin that could adversely affect historic properties.

*The FERC staff would provide oversight for an environmental inspection and monitoring program that would ensure compliance with all mitigation measures that become conditions of the FERC authorizations.

“In addition, the FERC staff and cooperating agencies developed site-specific mitigation measures that Mountain Valley and Equitrans should implement to further reduce the environmental impacts that would otherwise result from construction of their projects. The FERC staff determined that these measures are necessary to reduce the adverse impacts associated with the projects, and in part, are basing conclusions on implementation of these measures. These additional measures [41 areas of actions] are listed as recommendations in section 5.2 of the EIS.”

Section 401 Water Quality Permit Certification Process in Virginia for Proposed Atlantic Coast and Mountain Valley Natural Gas Pipeline Projects; Lawsuit Announced in Early June 2017; Va. DEQ in mid-June 2017 Details Oversight It Plans to Exercise; Public Comment and Public Hearings Schedule Announced June 30, 2017

On May 24, 2017, the Virginia Department of Environmental Quality (DEQ) acknowledged that the agency will not require individual permits for stream and wetland impacts of the proposed Atlantic Coast and Mountain Valley pipelines, should the projects be approved (both proposed projects are under review (as of May 2017) by the Federal Energy Regulatory Commission (FERC).  Instead,  the U.S. Army Corps of Engineers would be responsible for determining whether such impacts required individual permits or could be authorized under the Clean Water Act Nationwide Permit 12 process, a general permit that would cover all of a project’s wetland and stream crossings.

The agency had announced on April 7, 2017, the it would require individual state permits for each stream/wetland crossing in addition to the Corps’ process, but the agency asserted on May 24 that the April announcement was an error resulting from miscommunication between the agency’s technical staff and public affairs staff.

The DEQ said in May that it still intends to require certifications–known as 401 certifications after the relevant section of the federal Clean Water Act–of the potential water impacts of each project as a whole, and that it will hold public hearings on that process.  That process would focus on water impacts beyond the jurisdiction of the Corps, according to news reports on May 24-25, 2017.  On June 30, 2017, the DEQ announced a series of public comment sessions on the 401 certifications for both proposed pipelines; the public comment period will run July 3-August 22, 2017.  See Public comment period and public hearings scheduled on draft water quality certifications for proposed natural gas pipelines, Virginia Department of Environmental Quality News Release, 6/30/17.

In early June 2017, three groups—Dominion Pipeline Monitoring Coalition, Bold Alliance, and Preserve Craig, Inc.—filed suit in Richmond Circuit Court, challenging the DEQ’s decision.

In an interview on June 6, 2017, DEQ Director David Paylor defended his agency’s decision to have the Army Corps of Engineers direct permitting for potential impacts of the proposed pipelines’s waterway and wetlands crossings, saying that the DEQ will focus on potential impacts in watersheds upstream of the proposed crossings.

In a mid-June 2017 e-mail communication reported by The Roanoke Times, Virginia Deparment of Environmental Quality (DEQ) spokesman Bill Hayden detailed steps that the DEQ intends to take in reviewing potential environmental impacts of the proposed Mountain Valley and Atlantic Coast pipelines, should those projects receive approval from the Federal Energy Regulatory Commission (FERC).  According to the newspaper article  (Virginia DEQ pledges thorough review of pipeline impacts, Roanoke Times, 6/18/17), “Hayden cited a host of requirements and conditions reflective of the “additional measures” deemed necessary by DEQ — ranging from a demand for water-quality monitoring before, during and after construction to details about the pipeline companies’ plans for construction and operation of the projects in karst landscapes featuring sinkholes, caves, underground streams and the like. …As one example of anticipated scrutiny, Hayden said DEQ is requiring developers of the two pipelines to submit detailed, site-specific erosion and sedimentation control and storm water plans for every foot of land disturbance related to pipeline construction, including access roads and temporary staging areas.”

More details on DEQ communications, decisions, and actions regarding the agency’s potential environmental impacts of the proposed pipelines are available in “A very confused, inaccurate picture is being spread”: Why did Virginia DEQ wait seven weeks to correct inaccurate pipeline statement?, Richmond Times-Dispatch, 6/20/17.

For more information on the federal Clean Water Act’s required Section 401 state certification process, see “401 Certification,” Association of State Wetland Managers, online at https://www.aswm.org/wetland-programs/regulation/401-certification.

Sources and ongoing list of news items about the permitting issue:
Va. to expand review of proposed gas pipelines, Richmond Times-Dispatch, 6/30/17.
Virginia DEQ pledges thorough review of pipeline impacts, Roanoke Times, 6/18/17.
Montgomery County to ask Virginia DEQ to reconsider pipeline permit policy, WDBJ TV-Roanoke, 6/12/17.
Top Virginia environmental official defends pipeline reviews, Associated Press, as published by Virginian-Pilot, 6/8/17.
Group sues Virginia environmental agency over pipeline permitting, Richmond Times-Dispatch, 6/7/17.
DEQ draws ire of pipeline opponents, The News Virginian [Waynesboro], 5/25/17.
Virginia DEQ denies backpedaling on pipeline water-crossing reviews, Richmond Times-Dispatch, 5/24/17.
DEQ acknowledges error, clarifies approach to review of pipelines, Roanoke Times, 5/24/17.
As gas pipelines roil Virginia governor’s race, regulators backtrack on their role, Washington Post, 5/25/17.
A Brain-Frying Foray into the Regulatory Maze, Bacon’s Rebellion, 4/19/17 [discussing differences between “nationwide” and “individual” permits under the federal Clean Water Act, relating to potential stream/wetland impacts of the proposed natural gas pipelines].
DEQ will require additional individual 401 certifications for natural gas transmission pipeline projects, Virginia Department of Environmental Quality News Release, 4/6/17.
Virginia pipelines will be subject to Department of Environment Quality water-quality review, Richmond Times-Dispatch, 4/6/17.
DEQ to require pipeline projects to secure state water quality certification, Roanoke Times, 4/6/17.
What’s Next for the Pipeline Controversies?, Bacon’s Rebellion, 4/14/17.

For more details about natural gas developments in Virginia, please see the Water Central News Grouper post, Natural Gas Drilling and Transport in Virginia under Close Scrutiny in 2014-17.

Water in the 2017 VA General Assembly: Fracking Chemical Disclosure Bills – Updated February 21, 2017

Research and most of the writing for this post was done by Eryn Turney, the Virginia Water Resources Research Center’s spring 2017 intern.

According to the U.S. Environmental Protection Agency (EPA)’s article “The Process of Hydraulic Fracturing” (https://www.epa.gov/hydraulicfracturing/process-hydraulic-fracturing), hydraulic fracturing (commonly known as “fracking”) is the process by which gas and oil are extracted from deep beneath the earth’s surface via fractures in underground rock formations. Special fluids containing water, chemical additives, and sediments are pumped into the ground at extremely high pressures in order to widen fractures in the rocks to allow for increased access to the resources. After the expansion, the fluid returns to the earth’s surface due to internal pressure, which is known as “flowback” or “produced water.” Flowback can contain the chemicals, sediments, and other materials picked up during the process. Though this wastewater is often stored on site before disposal or recycling, it can also be injected underground for disposal. According to another article by the US EPA, “Class II Oil and Gas Related Injection Wells” (https://www.epa.gov/uic/class-ii-oil-and-gas-related-injection-wells), this wastewater has extremely high salinity, as well as traces of radioactive substances and metals. According to the EPA, if discharged to water or land, this wastewater poses a risk to environmental and public health. The deep underground injection of flowback can prevent soil and water contamination given it is isolated from underground sources of drinking water.

During the 2017 Session of the Virginia General Assembly, four bills related to fracking were introduced. This post will be updated throughout Session in order to document the progression and revision of House Bill (HB) 1678, HB 1679, and companion Senate Bills (SB) 1291 and SB 1292. Following are the descriptions for each of these bills. Information was retrieved from the Virginia Legislative Information System (LIS), online at http://lis.virginia.gov/. Please visit this site to explore further the progress of various legislation at the 2017 session of General Assembly.  Please note each of the bills below are hyperlinked to their respective LIS sites.  Below the bills are a list of related news media article.

HB 1678: Virginia Freedom of Information Act (FOIA); trade secrets submitted to the Department of Mines, Minerals and Energy (DMME).

Sponsor: Delegate Roxann Robinson, R-District 27, of Midlothian

As introduced, this bill provides an additional exclusion from FOIA requests for disclosure of information considered trade secrets provided to DMME involving chemicals used in the fracking process. This bill states that in order for the information to be protected, the company must identify the specific materials that they want protected, and state a reason why protection is necessary. From here, the DMME can determine whether or not the information should actually be entitled to protection.

Status and changes:
1/24/17 Reported from General Laws Committee with an amendment defining the trade secret to be disclosed as the “recipe” of the chemical concentrations rather than just a list of chemicals used in the process (focused on “disclosure of amount of concentration of chemicals or ingredients…”).

1/30/17 Passed by House (59 Yes – 37 No).

1/31/17 Referred to Senate General Laws and Technology Committee.

2/13/17 Failed to report from Senate General Laws and Technology Committee; bill defeated.

Current Language of Bill (including amendment) as of 2/21/17, describing the additional exclusion to Virginia’s FOIA:
Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), submitted to the Department of Mines, Minerals and Energy pursuant to requirements for disclosure of the amount or concentration of chemicals or ingredients used to stimulate a well pursuant to § 45.1-361.29 or regulations promulgated under § 45.1-361.27. In order for such trade secrets to be excluded from the provisions of this chapter, the submitting party shall (i) invoke this exclusion upon submission of the data or materials for which protection from disclosure is sought, (ii) identify the data or materials for which protection is sought, and (iii) state the reasons why protection is necessary. The Department shall determine whether the information claimed to be a trade secret is entitled to such protection.

HB 1679: Well permit applications; disclosure of trade secrets.

Sponsor: Delegate Roxann Robinson, R-District 27, of Midlothian

As introduced, this bill authorizes the DMME to have access to certain information about the chemicals used during the fracking process. This bill also authorizes the director of the DMME to provide others with this information (including emergency personnel, state or local officials, and others on staff) should a mishap occur with the chemicals and present an emergency situation. If the Director shares this information with others, he/she must notify the company who disclosed the trade secret about this as soon as possible, and others are prohibited from furthering sharing the information.

During the House ACNR Natural Resources Subcommittee meeting on Wednesday January 18, 2017, issues discussed regarding this bill were the public’s right to know what is/could be reaching soil and water resources, what degree of access emergency personnel should have to this information prior to a mishap in order to be prepared to respond (including chemical safety sheets, training, etc.), what constitutes a “trade secret” (whether this is the specific names of the chemicals used or the “recipe” of the combination and concentrations of the chemicals used), how the DMME will be granted access to these trade secrets, and how the DMME will further be able to distribute these trade secrets.

Please click this link to listen to a recording (30 min./31 sec.) of the House ACNR Natural Resources Subcommittee discussion of HB 1679 on January 18.

Status and changes:
1/25/17 ANCR subcommittee recommends reporting with an amendment (amendment not yet posted as of 1/31/17).

2/1/17 ACNR Committee reports with an amendment requiring that a well permit applicant provide to the relevant local government Safety Data Sheets for the chemical materials and products proposed for use in the well completion process.

2/6/17 House agrees to Committee amendment.

2/7/17 Passed by House (63 Yes – 34 No).

2/8/17 Referred to Senate ACNR Committee.

2/16/17 Bill stricken (removed from consideration) at request of patron (9 Yes – 0 No).

Current Language of Bill as of 2/21/17:
J. The Department may require an application for a well, a supplement thereto, and a well completion report to include chemical ingredient names, the chemical abstracts numbers for chemical ingredients, or the amount or concentration of chemicals or ingredients, used to stimulate a well provided there is an exclusion from mandatory disclosure under the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) applicable to the extent that such information meets the definition of a trade secret set forth in the Uniform Trade Secrets Act (§ 59.1-336 et seq.). The applicant or permittee, as applicable, shall provide, or cause the trade secret claimant to provide, the required trade secret information to the Department. The Director may disclose information regarding the specific identity of a chemical, the concentration of a chemical, or both the specific identity and concentration of a chemical, claimed to be a trade secret to additional Department staff or any relevant state or local government official to the extent that such disclosure is necessary to assist the Department in responding to an emergency resulting in an order pursuant to subsection D of § 45.1-361.27. No such Department staff or state or local official shall disseminate the information further. Any information so disclosed to Department staff or state or local officials shall at all times be considered confidential and shall not be construed as publicly available. If the Director discloses such information to any state or local government official, then the Director shall notify the party that submitted the trade secret information of that disclosure as soon as practicable. No order issued pursuant to § 45.1-361.27 shall include trade secret information.

K. The applicant for a drilling permit shall provide to the governing body of the locality in which a well is proposed to be located information necessary for the local government to access the safety data sheet, as defined in 29 C.F.R.1910.1200, for each of the chemical materials and products proposed for use in the well completion process. Such information shall be provided to the local government within seven days of the date the permit application is submitted to the Department.

SB 1291: Well permit applications; disclosure of trade secrets.

Sponsor: Senator A. Benton Chafin, R-District 38, of Lebanon

As introduced, companion bill to HB 1679 (see that bill above for provisions as introduced).

Status and changes:
1/30/17 Reported from General Laws and Technology with amendment requiring that a well permit applicant provide to the relevant local government Safety Data Sheets for the chemical materials and products proposed for use in the well completion process. Referred to Finance Committee.

2/2/17 Failed to report from Senate Finance Committee (8 Yes – 8 No); bill defeated.

Current Language of Bill as of 2/21/17:
J. The Department may require an application for a well, a supplement thereto, and a well completion report to include chemical ingredient names, the chemical abstracts numbers for chemical ingredients, or the amount or concentration of chemicals or ingredients, used to stimulate a well provided there is an exclusion from mandatory disclosure under the Virginia Freedom of Information Act (§ 2.2-3700et seq.) applicable to the extent that such information meets the definition of a trade secret set forth in the Uniform Trade Secrets Act (§ 59.1-336et seq.). The applicant or permittee, as applicable, shall provide, or cause the trade secret claimant to provide, the required trade secret information to the Department. The Director may disclose information regarding the specific identity of a chemical, the concentration of a chemical, or both the specific identity and concentration of a chemical, claimed to be a trade secret to additional Department staff or any relevant state or local government official to the extent that such disclosure is necessary to assist the Department in responding to an emergency resulting in an order pursuant to subsection D of § 45.1-361.27. No such Department staff or state or local official shall disseminate the information further. Any information so disclosed to Department staff or state or local officials shall at all times be considered confidential and shall not be construed as publicly available. If the Director discloses such information to any state or local government official, then the Director shall notify the party that submitted the trade secret information of that disclosure as soon as practicable. No order issued pursuant to § 45.1-361.27 shall include trade secret information.

K.  The applicant for a drilling permit shall provide to the local government where a well is proposed to be located information necessary for the local government to access the Safety Data Sheets, as defined in 29 CFR1910.1200, for the chemical materials and products proposed for use in the well completion process. This information shall be provided to the local government within seven (7) days of the date the permit application is submitted to the Department.

SB 1292: FOIA; trade secrets submitted to the Department of Mines, Minerals and Energy.

Sponsor: Senator A. Benton Chafin, R-District 38, of Lebanon

As introduced, companion bill to HB 1678 (see that bill above for provisions as introduced).

Status and changes:
1/30/17 Reported from General Laws and Technology Committee with amendment defining the trade secret to be disclosed as the “recipe” of the chemical concentrations rather than just a list of chemicals used in the process (focused on “disclosure of amount of concentration of chemicals or ingredients…”).  This is the same amendment passed for companion bill HB 1678.

Referred to Finance Committee.

2/2/17 Failed to report from Senate Finance Committee (8 Yes – 8 No); bill defeated.

Current Language of Bill as of 2/21/17, describing the additional exclusion to Virginia’s FOIA:
Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), submitted to the Department of Mines, Minerals and Energy pursuant to requirements for disclosure of the amount or concentration of chemicals or ingredients used to stimulate a well pursuant to § 45.1-361.29 or regulations promulgated under § 45.1-361.27. In order for such trade secrets to be excluded from the provisions of this chapter, the submitting party shall (i) invoke this exclusion upon submission of the data or materials for which protection from disclosure is sought, (ii) identify the data or materials for which protection is sought, and (iii) state the reasons why protection is necessary. The Department shall determine whether the information claimed to be a trade secret is entitled to such protection.

Some News Media Items Related to the Bills
(Hyperlinks were functional when the headlines were initially added to this post.)

Virginia agency says it will not exempt information on fracking fluid from disclosure, Richmond Times-Dispatch, 2/26/17.

Fracking chemical recipes could be kept secret in Virginia under bill passed by HouseRichmond Times-Dispatch, 1/30/17.

Fracking bills draw concern from environmentalists, McAuliffe, [Newport News] Daily Press, 1/25/17.

Open-government advocates upset over fracking shield billFredericksburg Free Lance-Star, 1/17/17.