The West Virginia Legislature passed 293 bills during the 2021 legislative session that ended at the stroke of midnight Saturday.
Just eight of them were energy or environmental bills, according to the Legislature’s website.
Fifty-four out of 62 pieces of legislation fitting that bill didn’t pass. A plethora of priorities fell by the wayside.
Chief among those goals for West Virginia environmentalist groups was a boost in funding for the state Department of Environmental Protection’s cash-strapped Office of Oil and Gas.
“That’s one thing that is really regrettable to see die when in the Legislature. So many members were very well aware of the problems and seemed to have a strong interest in addressing it,” West Virginia Rivers Coalition Executive Director Angie Rosser said.
The Office of Oil and Gas needs $1.3 million more annually just to get back to previous staffing levels advocates say were already inadequate, a shortfall driven by its main revenue pipeline — permit fees — drying up amid oil and gas industry struggles.
The office is responsible for monitoring and regulating oil and gas drilling, storage and production, and manages the state’s abandoned well-plugging and reclamation program.
There are 75,000 wells throughout the state, including roughly 6,000 orphaned wells, that inspectors are responsible for, DEP Deputy Secretary Scott Mandirola told lawmakers considering legislation to bolster Office of Oil and Gas funding during the session.
Mandirola explained to legislators that the DEP reduced the size of the Office of Oil and Gas from about 45 to 25 staff members in 2020 due to a lack of funding, including an inspection staff reduction from 18 to nine. He noted the majority of the office’s funding comes from permit application fees, and that the office doesn’t collect revenue from annual oversight fees like the DEP’s other divisions.
Two bills that would have at least restored the office’s funding to its levels before the downsizing got approval from a Senate energy panel, and one passed the entire Senate. But that’s as far as they went.
Senate Bill 480 would have restored the office’s inspector-to-well ratio to roughly 4,000-to-1 by imposing a $100 annual oversight fee for unplugged wells that produce 10,000 cubic feet or more of gas per day.
The Senate passed SB 480 in a 25-8 vote on Feb. 21. It would have raised an additional $1.35 million annually based on 2020 well production data, according to a fiscal note for the bill. But the measure proved dead on arrival in the House of Delegates, where it languished in the Finance Committee.
Just three days after the Senate passed SB 480, Senate Energy, Industry and Mining Committee Chair Randy Smith, R-Tucker, said there was no interest in advancing SB 480 in the House, prompting him to turn to Senate Bill 613 as a means of bolstering Office of Oil and Gas funding.
SB 613 would have taken a different approach to boosting Office of Oil and Gas revenue. It would have dedicated 1.5% of oil and gas severance tax to the office and added an estimated $1.9 million annually to the office’s coffers.
But the bill died in the Senate Finance Committee.
“This is an unfortunate reflection on our legislators’ prioritization in protecting our air and water,” West Virginia Environmental Council Linda Frame said.
For the second straight year, the Legislature ignored House Bill 2725, which would have instituted a $100 annual oversight fee for all wells.
Gas and Oil Association of West Virginia Executive Director Charlie Burd spoke out against SB 480, arguing that its $100 annual oversight fee for unplugged wells producing 10,000 cubic feet or more of gas daily was too onerous.
Burd said a sharp rise in well operation expenses in the past month and a longer history of severance taxes supporting local property tax bases made a case for the state finding more funding for oil and gas inspectors elsewhere.
“We’ll kind of see how that might advance in the future but the approach of a per well fee can, when you look at the dynamic of that, hurt companies in a nonuniform way,” said Burd, adding he did not oppose SB 613 given its dedication of a portion of an already existing severance tax to funding the Office of Oil and Gas.
Rosser called on Gov. Jim Justice, a coal magnate who has urged ramping up coal, oil and gas production in response to the U.S. ban on energy from Russia following its attack on Ukraine, to act to stabilize Office of Oil and Gas funding.
“We can’t go another year with nine inspectors for 75,000 wells and counting,” Rosser said. “That’s unacceptable.”
Conservationists and clean water advocates hailed the failure of a bill that would have exempted oil and gas tanks closest to public water intakes from mandated evaluations and certifications by registered professional engineers or other approved individuals under the state Aboveground Storage Tank Act.
The state defines zones of critical concern — the areas nearest to water intakes — as consisting of a five-hour water-travel time in streams to an intake, with a width of 1,000 feet horizontally from each bank of the principal stream.
House Bill 2598 would have also allowed tanks in zones of critical concern with 8,820 gallons or less of crude oil, brine water and natural gas condensate to be self-inspected and self-certified by their owner or operator at least once per year and reported to the state.
The bill was designed to benefit the oil and gas industry by lessening inspection costs for tank operators. But it provoked concern about potential drinking water contamination from tank leaks of pollutants harmful to human health near public water intakes.
The House of Delegates passed HB 2598 in a 77-22 vote on Feb. 15, but the Senate Energy, Industry and Mining Committee tabled it without explanation in the final week of the session.
Last year’s version of HB 2598, which passed the House before stalling in the Senate, would have went further by fully exempting the category of tanks closest to water intakes holding up to nearly 9,000 gallons of oil or gas from regulation under the Aboveground Storage Tank Act, which requires registration and certified inspection of such tanks, as well as the submission of spill-prevention response plans.
“I hope that sends a message to industries with tanks in zones of critical concern that there just isn’t enough appetite at the Legislature or the agency to contemplate further weakenings of those protections, especially dealing with tanks in the zones for critical concern,” Rosser said.
“We’ll keep seeing how we can make it better, but this bill was pretty innocuous,” Burd said.
The Legislature passed the Aboveground Storage Tank Act in 2014 in response to the Elk River chemical spill in January of that year that contaminated the drinking water supply for 300,000 people.
The Senate Energy, Industry and Mining Committee adjourned its final meeting of the session without taking action on HB 4553, a bill that in its final form would have allowed non-utility electric generating facilities seeking or having been granted authorization from the Public Service Commission in any zoning district.
The House had voted 52-42 to approve HB 4553 on March 1 after it amended the bill to include the exception for wind-powered electric generating facilities. Delegates rejected amendments that also would have made solar facilities ineligible for the bill’s blanket zoning exemption.
Opponents of the bill, including the West Virginia Environmental Council, said it would have gone too far in overturning local zoning control.
The House Judiciary Committee advanced HB 4553 after Jefferson County Commissioner Steve Stolipher lobbied the committee to approve it to override legal challenges to proposed solar development in his county.
One proposed facility is a 92.5-megawatt solar generating facility to be located on 795 acres of agricultural land at a cost of $125 million.
The Public Service Commission granted Wild Hill Solar, LLC — a subsidiary of San Diego-based power producer EDF Renewables North America — a siting certificate for the proposed facility in February 2021 that the company applied for in November 2020.
“With the bill not moving forward now, we could see delayed or foregone investment in the state,” said EDF Renewables regulatory and legislative affairs director Tom Carlson, who had lobbied the Energy, Industry and Mining Committee to back the bill. “We expect the policy could be considered again in the future.”
Carlson and other advocates for the bill argued it would encourage solar development by providing more uniform permitting for projects.
