Attorneys Advise Pocahontas Commission To Wait A Bit

Marlinton, WV – During the County Commission meeting Tuesday, WVU Professor Robert Bastress and Attorney Roger Foreman cautioned the Pocahontas County Commissioners to take their time when considering any county ordinance regarding Marcellus Shale drilling. With new regulations under consideration by the West Virginia state legislature, they say it may be to the county’s advantage to wait until the new regulations take effect – Attorney Roger Forman.

“What I know is that most of the jurisdictions that have put in prohibitions are withdrawing that at this point,” he says. “There also happens to be a new statute that’s coming in; about 76 pages and a bunch of amendments and we don’t know what the final version of it will be. Bob [Robert Bastress] took a real good look at the portion of the statute 22a-16, which basically left some powers to the county to regulate and did a really very good proposed ordinance.”

The ordinance draft lists several reasons why the practice of deep well drilling would be detrimental to the county including threatening the farming, timber and tourism industries, as well as the potential irreparable harm to the water and unique karst geology of the county. The second part of the ordinance addresses specific restrictions such as proximity to schools, churches or residences, noise, water use, disposal of drilling waste products, road use, and limiting the hours of production. Bastress, present at the meeting by phone, says he wrote the ordinance in such a way as to avoid it being pre-empted by state regulation.

“The exact language is that all local ordinances and enactments purporting to regulate gas operations are hereby preempted and superseded to the extent the ordinance enactments regulate the method of gas operations,” says Bastress.

“So just to clarify in my mind,” says Commissioner Martin Saffer, “the legislature is saying that we could not ban fracking as that is a drilling procedure which they say they have preemptive authority to regulate. Right,” says Bastress.

Bastress says he believes the legislature will have a Marcellus bill to vote on by the end of the year in a special session, possibly as early as this month. A select committee of legislators from the West Virginia Senate and the House of Delegates has been working on this since June.

Commissioner Saffer says they got no response from a letter they sent to the Governor and legislature outlining a list of suggested amendments to include in the new regulation. But Bastress says some of the ideas listed have been included in the current draft under consideration by the committee. Saffer asks why the county ordinance language concerning the karst geology isn’t more definitive.

“I wasn’t sure how to formulate it because I didn’t want to address drilling in particular,” says Bastress. “I think you could do something like an industrial operation that would threaten, endanger the karst or whatever,” says Bastress. “And then the water system, natural water system would have to be specially permitted or something like that. I think that is something that you could add in to that. The karst regulation, that’s in the proposed statute I think is an amendment which is not yet been adopted if I’m not mistaken.”

Forman says karst regulation might also be addressed through a rule making amendment by the West Virginia Dept of Environmental Protection. The Pocahontas Commissioners are also asking two other experts to weigh in on this issue in the coming weeks. One is Paul Rubin, a hydro geologist from New York, scheduled to speak to the Commissioners on November 17th at 5:30pm. The other is Tim Carr, a WVU expert and pro-drilling advocate who asserts that the likelihood of drilling in Pocahontas is very small. Carr will speak to the Commissioners on November 14th at 1pm.

The Commissioners asked Bastress and Forman to present an updated draft of the county ordinance proposal at the December 6th Commission meeting.

Tune in for noon hour on Thursday [11-3]for more from the Pocahontas County Commission meeting.