Although lawmakers were unable to come to a resolution on the Marcellus shale regulation bill, the head of the executive branch said he will take action instead of calling a special session.

Acting Gov. Earl Ray Tomblin, unsure whether a special session would be called when asked Saturday, had a more definitive answer Monday evening. Jacqueline Proctor, communications director for Tomblin, responded to questions about the failed Marcellus regulation bill via e-mail.

“Unfortunately, the Legislature was unable to agree upon a regulatory approach to drilling in the Marcellus shale. Nevertheless, this issue is too important to West Virginia for me to wait any longer,” Tomblin said. “Therefore, instead of calling a special session, I will be directing DEP Secretary Randy Huffman to use his inherent statutory power and rule-making authority to regulate this industry.

“I am confident that we will succeed and that the gas in the Marcellus shale will be developed in an environmentally responsible manner.”

Surface owners concerned about their rights during the development of natural gas sites say regulations for surface owners need to be considered immediately.

“We are bitterly disappointed that the governor thinks it is OK to wait until next year to deal with issues like letting drillers put one of these wells 200 feet from our homes, and letting them bury their pit waste on our property,” said Dave McMahon, co-founder of the West Virginia Surface Owners’ Rights Organization.

“And actually we have been waiting five years to get legislation to prevent drillers from coming on to our property and surveying the site and road without notifying the surface owner first and offering to meet with them. Is this really too much to ask?

“Until the Legislature puts in place the protections needed for surface owners and the environment, we do not believe that the DEP should be giving out more new permits than it can properly review, inspect and enforce.”

Proctor said Tomblin does agree surface owners have rights that should be protected, but did not detail how those would be managed in lieu of the bills before the House and Senate.

“As with all mineral development, the right to utilize the surface in conjunction with development activities is often a matter negotiated between the surface owner and the production company,” Proctor said. “Gov. Tomblin believes in the sanctity of private contracts, but he also supports reasonable well spacing regulations and requiring gas companies to give surface owners adequate notice before drilling begins on their property.”

While the Senate did manage to pass a bill regulating the Marcellus shale, and it even made it out of two House committees, the House could not get the bill out on the floor before the session ended at midnight Saturday. The bill died in the House with several amendments pending.

Leadership from the Senate was quick to point the blame at leaders of the House.

“This Senate passed the bill on March 2, giving the House of Delegates more than enough time to consider it,” acting Senate President Jeffrey Kessler said. “The House, however, never voted on it.”

Though several said the Senate bill did not do enough to regulate the industry, Kessler said the bill did offer plenty of environmental regulations, permit fees, protection of property owners and other issues related to development of the shale.

“I would like to know there is some agreement we could get, in which case I would say we should have a special session,” Kessler said.

He added that passage of some sort of Marcellus legislation is crucial and will take some work to reach a consensus. He said the Senate bill, while not widely regarded by surface owners and environmentalists, represented a compromise that could pass given the numerous interested parties involved.

Julie Archer, project manager for WV-SORO and the West Virginia Citizen Action Group, said they appreciate lawmakers’ efforts, but the House bill was the legislation many were hoping to see pass.

“The Senate version of the bill was not as strong as we wanted and we preferred the House version, which provided more protections for surface owners and the environment,” Archer said. “We really do not understand why (House) Speaker Rick Thompson took actions that delayed consideration of the bill and caused it to die. Now, the speaker says he believes the issue should be dealt with in a special session. If he is serious about a special session, he should push to make it happen.”

Thompson, D-Wayne, said he is serious about a special session to deal with the complexities of the Marcellus shale development.

“I think the issue is so big and there is so much at stake, it is the type of issue that is much better dealt with in a special session opposed to a general session where all the other bills and other things are going on,” Thompson said. “Obviously, the members are going in different directions on different bills.”

He said a special session in which lawmakers sit down and work with the affected parties would be best for Marcellus shale legislation. He added it would “take some homework” to get an effective compromise together.

Thompson said the difference between the bills the Senate tried to pass and the House version was too great. He said the House judiciary chair and the Senate judiciary chair were attempting to work together on drafting a compromise, but could not before the session ended.

“Each body passing two different bills does nobody any good,” Thompson said. “What I was attempting to do was work with the Senate to get some language put in there and we never did come up with an agreement.”

Environmental groups are not satisfied with Tomblin’s answer either. Don Garvin, legislative coordinator for the West Virginia Environmental Council, says the DEP is already stretched to cover the drillers that are out there.

“Our drilling laws have not been modified in nearly 40 years. There are only 17 inspectors for 59,000 active gas wells,” Garvin said. “There are 6,000 conventional wells that need to be plugged before the well owners go out of business. We have had at least three major well fires and explosions in the past 18 months. The current system isn’t working.”

Corky DeMarco, executive director of the West Virginia Oil and Natural Gas Association, expressed dismay Saturday night that legislation would not be passed. He said industry leaders need the certainty of knowing what regulations would be in place.

DeMarco could not be reached late Monday evening for an updated position.

Tomblin said by directing Huffman to further promulgate legislative rules, natural gas can be comfortable in investing in West Virginia.

“Without a doubt, a predictable and reasonable regulatory environment coupled with an abundant gas supply will result in billions of dollars of capital investment in West Virginia’s natural gas industry,” Tomblin said. “This investment will benefit our economy for generations and will create thousands of good-paying jobs.

“In addition to protecting the environment, that is the reason that I will direct DEP Secretary Randy Huffman to utilize his existing statutory authority to promulgate legislative rules addressing Marcellus drilling. I am committed to fostering a climate in which companies will invest capital in West Virginia to develop the Marcellus shale in an environmentally responsible manner.”

— E-mail: tkuykendall@register-herald.com