Introduced Version
House Bill 3046 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 3046
(By Delegates Manypenny and Fleischauer)
[Introduced March 22, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §22-6-9, §22-6-10 and §22-6-11 of the
Code of West Virginia, 1931, as amended; and to amend and
reenact §22-6A-8, §22-6A-10 and §22-6A-11 of said code, all
relating to requiring the Department of Environmental
Protection to issue a procedural rule to allow surface owners
a right to a hearing and appeal of a decision of the
department to issue, condition or deny a permit for certain
well work on the surface owner's land.
Be it enacted by the Legislature of West Virginia:
That §22-6-9, §22-6-10 and §22-6-11 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that §22-
6A-8, §22-6A-10 and §22-6A-11 of said code be amended and
reenacted, all to read as follows:
ARTICLE 6. OFFICE OF OIL AND GAS; OIL AND GAS WELLS;
ADMINISTRATION; ENFORCEMENT.
§22-6-9. Notice to property owners.
(a) No later than the filing date of the application, the
applicant for a permit for any well work shall deliver by personal
service or by certified mail, return receipt requested, copies of
the application, well plat and erosion and sediment control plan
required by section six of this article to each of the following
persons:
(1) The owners of record of the surface of the tract on which
the well is, or is to be located; and
(2) The owners of record of the surface tract or tracts
overlying the oil and gas leasehold being developed by the proposed
well work, if such surface tract is to be utilized for roads or
other land disturbance as described in the erosion and sediment
control plan submitted pursuant to section six of this article.
(b) If more than three tenants in common or other coowners of
interests described in subsection (a) of this section hold
interests in such lands, the applicant may serve the documents
required upon the person described in the records of the sheriff
required to be maintained pursuant to section eight, article one,
chapter eleven-a of this code, or publish in the county in which
the well is located or to be located a Class II legal advertisement
as described in section two, article three, chapter fifty-nine of
this code, containing such notice and information as the director
shall prescribe by rule, with the first publication date being at least ten days prior to the filing of the permit application:
Provided, That all owners occupying the tracts where the well work
is, or is proposed to be located at the filing date of the permit
application shall receive actual service of the documents required
by subsection (a) of this section.
(c) Materials served upon persons described in subsections (a)
and (b) of this section shall contain a statement of the methods
and time limits for filing comments and requesting a hearing
, who
may file comments
and request a hearing
and the name and address of
the director for the purpose of filing comments,
requesting a
hearing
and obtaining additional information and a statement that
such persons may request, at the time of submitting comments,
notice of the permit decision and a list of persons qualified to
test water as provided in this section.
(d) Any person entitled to submit comments shall also be
entitled to receive a copy of the permit as issued or a copy of the
order denying the permit if such person requests the receipt
thereof as a part of the comments concerning said permit
application.
(e) Persons entitled to notice may contact the district office
of the division to ascertain the names and location of water
testing laboratories in the area capable and qualified to test
water supplies in accordance with standard accepted methods. In
compiling such list of names the division shall consult with the State Bureau of Public Health and local health departments.
§22-6-10. Procedure for filing comments; certification of notice.
(a) All persons described in subsections (a) and (b), section
nine of this article may file comments
and may also request a
hearing
with the director as to the location or construction of the
applicant's proposed well work within fifteen days after the
application is filed with the director.
(b) Prior to the issuance of any permit for well work, the
applicant shall certify to the director that the requirements of
section nine of this article have been completed by the applicant.
Such certification may be by affidavit of personal service or the
return receipt card, or other postal receipt for certified mailing.
§22-6-11. Review of application; issuance of permit in the absence
of objections; copy of permits to county assessor.
The director shall review each application for a well work
permit and shall determine whether or not a permit shall be issued.
No permit shall be issued less than fifteen days after the
filing date of the application for any well work except plugging or
replugging; and no permit for plugging or replugging shall be
issued less than five days after the filing date of the application
except a permit for plugging or replugging a dry hole: Provided,
That if the applicant certifies that all persons entitled to notice
of the application under the provisions of this article have been served in person or by certified mail, return receipt requested,
with a copy of the well work application, including the erosion and
sediment control plan, if required, and the plat required by
section six of this article, and further files written statements
of no objection
waiving, in the case of those entitled notice under
section nine of this article, the right to a hearing by all such
persons, the director may issue the well work permit at any time.
If any person entitled to a notice pursuant to subsections (a)
and (b) of section nineteen of this article requests a hearing on
the permit on issues upon which the director can condition or deny
issuance of a permit, the director shall provide such a hearing.
The hearing does not have to be provided pursuant to the
administrative provisions for contested cases as provided in
article five, chapter twenty-nine-a of this code. The secretary
shall promulgate a procedural rule for the hearing pursuant to this
provision. Appeals shall be pursuant to article five, chapter
twenty-nine-a of this code.
The director may cause such inspections to be made of the
proposed well work location as to assure adequate review of the
application. The permit shall not be issued, or shall be
conditioned including conditions with respect to the location of
the well and access roads prior to issuance if the director
determines that:
(1) The proposed well work will constitute a hazard to the safety of persons; or
(2) The plan for soil erosion and sediment control is not
adequate or effective; or
(3) Damage would occur to publicly owned lands or resources;
or
(4) The proposed well work fails to protect fresh water
sources or supplies.
The director shall promptly review all comments filed. If
after review of the application and all comments received, and
after holding any hearing requested pursuant to this section by
persons entitled to a notice pursuant to subsections (a) and (b) of
section nineteen of this article, the application for a well work
permit is approved, and no timely objection or comment has been
filed with the director or made by the director under the
provisions of section fifteen, sixteen or seventeen of this
article, the permit shall be issued, with conditions, if any.
Nothing in this section shall be construed to supersede the
provisions of sections six, twelve, thirteen, fourteen, fifteen,
sixteen and seventeen of this article.
The director shall mail a copy of the permit as issued or a
copy of the order denying a permit to any person who submitted
comments to the director concerning said permit and requested such
copy.
Upon the issuance of any permit pursuant to the provisions of this article, the director shall transmit a copy of such permit to
the office of the assessor for the county in which the well is
located.
ARTICLE 6A. NATURAL GAS HORIZONTAL WELL CONTROL ACT.
§22-6A-8. Review of application; issuance of permit; performance
standards; copy of permits to county assessor.
(a) The secretary shall review each application for a well
work permit and shall determine whether or not a permit is issued.
(b) No permit may be issued less than thirty days after the
filing date of the application for any well work except plugging or
replugging; and no permit for plugging or replugging may be issued
less than five days after the filing date of the application except
a permit for plugging or replugging a dry hole: Provided, That if
the applicant certifies that all persons entitled to notice of the
application under the provisions of subsection (b), section ten of
this article have been served in person or by certified mail,
return receipt requested, with a copy of the well work application,
including the erosion and sediment control plan, if required, and
the well plat, and further files written statements of no objection
waiving, in the case of those entitled notice under section ten-b
(1), (2) and (4) of this article, the right to a hearing
by all
such persons, the secretary may issue the well work permit at any
time.
(c) Prior to the issuance of any permit, the secretary shall
ascertain from the Executive Director of Workforce West Virginia
and the Insurance Commissioner whether the applicant is in default
pursuant to the provisions of section six-c, article two, chapter
twenty-one-a of this code, and in compliance with section five,
article two, chapter twenty-three of this code, with regard to any
required subscription to the Unemployment Compensation Fund or
mandatory workers' compensation insurance, the payment of premiums
and other charges to the fund, the timely filing of payroll reports
and the maintenance of adequate deposits. If the applicant is
delinquent or defaulted, or has been terminated by the executive
director or the Insurance Commissioner, the permit may not be
issued until the applicant returns to compliance or is restored by
the executive director or the Insurance Commissioner under a
reinstatement agreement: Provided, That in all inquiries the
Executive Director of Workforce West Virginia and the Insurance
Commissioner shall make response to the Department of Environmental
Protection within fifteen calendar days; otherwise, failure to
respond timely is considered to indicate the applicant is in
compliance and the failure will not be used to preclude issuance of
the permit.
(d) The secretary may cause such inspections to be made of the
proposed well work location as necessary to assure adequate review
of the application. The permit may not be issued, or may be conditioned including conditions with respect to the location of
the well and access roads prior to issuance if the director
determines that:
(1) The proposed well work will constitute a hazard to the
safety of persons;
(2) The plan for soil erosion and sediment control is not
adequate or effective;
(3) Damage would occur to publicly owned lands or resources;
or
(4) The proposed well work fails to protect fresh water
sources or supplies.
(e) In addition to the considerations set forth in subsection
(d) of this section, in determining whether a permit should be
issued, issued with conditions, or denied, the secretary shall
determine that:
(1) The well location restrictions of section twelve of this
article have been satisfied, unless the requirements have been
waived by written consent of the surface owner or the secretary has
granted a variance to the restrictions, each in accordance with
section twelve of this article;
(2) The water management plan submitted to the secretary, if
required by subdivision (e), section seven of this article, has
been received and approved.
(f) The secretary shall promptly review all written comments filed by persons entitled to notice pursuant to subsection (b),
section ten of this article. If after review of the application
and all written comments received from persons entitled to notice
pursuant to subsection (b), section ten of this article,
and after
holding any hearing requested pursuant to subsection (d) of section
eleven of this article, the application for a well work permit is
approved, and no timely objection has been filed with the secretary
by the coal operator operating coal seams beneath the tract of
land, or the coal seam owner or lessee, if any, if said owner or
lessee is not yet operating said coal seams, or made by the
secretary under the provisions of section ten and eleven of this
article, the permit shall be issued, with conditions, if any. This
section does not supersede the provisions of section seven or
subdivisions (6) through (9), subsection (a), section five of this
article.
(g) Each permit issued by the secretary pursuant to this
article shall require the operator at a minimum to:
(1) Plug all wells in accordance with the requirements of this
article and the rules promulgated pursuant thereto when the wells
become abandoned;
(2) With respect to disposal of cuttings at the well site, all
drill cuttings and associated drilling mud generated from
horizontal well sites shall be disposed of in an approved solid
waste facility, or if the surface owner consents, the drill cuttings and associated drilling mud may be managed on-site in a
manner approved by the secretary;
(3) Grade, terrace and plant, seed or sod the area disturbed
that is not required in production of the horizontal well where
necessary to bind the soil and prevent substantial erosion and
sedimentation;
(4) Take action in accordance with industry standards to
minimize fire hazards and other conditions which constitute a
hazard to health and safety of the public;
(5) Protect the quantity and the quality of water in surface
and groundwater systems both during and after drilling operations
and during reclamation by: (A) Withdrawing water from surface
waters of the state by methods deemed appropriate by the secretary,
so as to maintain sufficient in-steam flow immediately downstream
of the withdrawal location. In no case shall an operator withdraw
water from ground or surface waters at volumes beyond which the
waters can sustain; (B) casing, sealing or otherwise managing wells
to keep returned fluids from entering ground and surface waters;
(C) conducting oil and gas operations so as to prevent, to the
extent possible using the best management practices, additional
contributions of suspended or dissolved solids to stream flow or
run-off outside the permit area, but in no event shall the
contributions be in excess of requirements set by applicable state
or federal law; and (D) registering all water supply wells drilled and operated by the operator with the Office of Oil and Gas. All
drinking water wells within one thousand five hundred feet of a
water supply well shall be flow and quality tested by the operator
upon request of the drinking well owner prior to operating the
water supply well. The secretary shall propose legislative rules
to identify appropriate methods for testing water flow and quality.
(6) In addition to the other requirements of this subsection,
an operator proposing to drill any horizontal well requiring the
withdrawal of more than two hundred ten thousand gallons in a
thirty-day period shall have the following requirements added to
its permit:
(A) Identification of water withdrawal locations. Within
forty-eight hours prior to the withdrawal of water, the operator
shall identify to the department the location of withdrawal by
latitude and longitude and verify that sufficient flow exists to
protect designated uses of the stream. The operator shall use
methods deemed appropriate by the secretary to determine if
sufficient flow exists to protect designated uses of the stream.
(B) Signage for water withdrawal locations. All water
withdrawal locations and facilities identified in the water
management plan shall be identified with a sign that identifies
that the location is a water withdrawal point, the name and
telephone number of the operator and the permit numbers(s) for
which the water withdrawn will be utilized.
(C) Record keeping and reporting. For all water used for
hydraulic fracturing of horizontal wells and for flowback water
from hydraulic fracturing activities and produced water from
production activities from horizontal wells, an operator shall
comply with the following record keeping and reporting
requirements:
(i) For production activities, the following information shall
be recorded and retained by the well operator:
(I) The quantity of flowback water from hydraulic fracturing
the well;
(II) The quantity of produced water from the well; and
(III) The method of management or disposal of the flowback and
produced water.
(ii) For transportation activities, the following information
shall be recorded and maintained by the operator:
(I) The quantity of water transported;
(II) The collection and delivery or disposal locations of
water; and
(III) The name of the water hauling company.
(iii) The information maintained pursuant to this subdivision
shall be available for inspection by the department along with
other required permits and records and maintained for three years
after the water withdrawal activity.
(iv) This subdivision is intended to be consistent with and does not supersede, revise, repeal or otherwise modify articles
eleven, twelve or twenty-six of this chapter and does not revise,
repeal or otherwise modify the common law doctrine of riparian
rights in West Virginia law.
(h) The secretary shall mail a copy of the permit as issued or
a copy of the order denying a permit to any person entitled to
submit written comments pursuant to subsection (a), section eleven
of this article and who requested a copy.
(i) Upon the issuance of any permit pursuant to the provisions
of this article, the secretary shall transmit a copy of the permit
to the office of the assessor for the county in which the well is
located.
§22-6A-10. Notice to property owners.
(a) Prior to filing a permit application, the operator shall
provide notice of planned entry on to the surface tract to conduct
any plat surveys required pursuant to this article. Such notice
shall be provided at least seven days but no more than forty-five
days prior to such entry to: (1) The surface owner of such tract;
(2) to any owner or lessee of coal seams beneath such tract that
has filed a declaration pursuant to section thirty-six, article
six, chapter twenty-two of this code; and (3) any owner of minerals
underlying such tract in the county tax records. The notice shall
include a statement that copies of the State Erosion and Sediment
Control Manual and the statutes and rules related to oil and gas exploration and production may be obtained from the Secretary,
which statement shall include contact information, including the
address for a web page on the Secretary's website, to enable the
surface owner to obtain copies from the secretary, and a statement
that a notice of rights to a hearing on the permit will be included
in a notice to them of the permit application at a later time
.
(b) No later than the filing date of the application, the
applicant for a permit for any well work or for a certificate of
approval for the construction of an impoundment or pit as required
by this article shall deliver, by personal service or by registered
mail or by any method of delivery that requires a receipt or
signature confirmation, copies of the application, the erosion and
sediment control plan required by section seven of this article,
and the well plat to each of the following persons:
(1) The owners of record of the surface of the tract on which
the well is or is proposed to be located;
(2) The owners of record of the surface tract or tracts
overlying the oil and gas leasehold being developed by the proposed
well work, if the surface tract is to be used for roads or other
land disturbance as described in the erosion and sediment control
plan submitted pursuant to subsection (c), section seven of this
article;
(3) The coal owner, operator or lessee, in the event the tract
of land on which the well proposed to be drilled is located is known to be underlain by one or more coal seams;
(4) The owners of record of the surface tract or tracts
overlying the oil and gas leasehold being developed by the proposed
well work, if the surface tract is to be used for the placement,
construction, enlargement, alteration, repair, removal or
abandonment of any impoundment or pit as described in section nine
of this article;
(5) Any surface owner or water purveyor who is known to the
applicant to have a water well, spring or water supply source
located within one thousand five hundred feet of the center of the
well pad which is used to provide water for consumption by humans
or domestic animals; and
(6) The operator of any natural gas storage field within which
the proposed well work activity is to take place.
(c) (1) If more than three tenants in common or other co-
owners of interests described in subsection (b) of this section
hold interests in the lands, the applicant may serve the documents
required upon the person described in the records of the sheriff
required to be maintained pursuant to section eight, article one,
chapter eleven-a of this code.
(2) Notwithstanding any provision of this article to the
contrary, notice to a lien holder is not notice to a landowner,
unless the lien holder is the landowner.
(d) With respect to surface landowners identified in subsection (b) or water purveyors identified in subdivision (5),
subsection (b) of this section, notification shall be made on forms
and in a manner prescribed by the secretary sufficient to identify,
for those persons, the rights afforded them under sections eleven
and twelve of this article, and the opportunity for testing their
water well.
(e) Prior to filing an application for a permit for a
horizontal well under this article, the applicant shall publish in
the county in which the well is located or is proposed to be
located a Class II legal advertisement as described in section two,
article three, chapter fifty-nine of this code, containing notice
of the public website required to be established and maintained
pursuant to section twenty-one of this article and language
indicating the ability of the public to submit written comments on
the proposed permit, with the first publication date being at least
ten days prior to the filing of the permit application. The
secretary shall consider, in the same manner required by subsection
(f), section eight of this article and subdivision (1), subsection
(c), section eleven of this article, written comments submitted in
response to the legal advertisement received by the secretary
within thirty days following the last required publication date:
Provided, That such parties submitting written comments pursuant to
this subsection are not entitled to participate in the processes
and proceedings that exist under sections fifteen, seventeen or forty, article six of this chapter, as applicable and incorporated
into this article by section five of this article.
(f) Materials served upon persons described in subsection (b)
of this section shall contain a statement of the time limits for
filing written comments
and requesting a hearing
, who may file
written comments
and request a hearing
, the name and address of the
secretary for the purpose of filing the comments,
requesting a
hearing and obtaining additional information, and a statement that
the persons may request, at the time of submitting written
comments, notice of the permit decision and a list of persons
qualified to test water.
(g) Any person entitled to submit written comments to the
secretary pursuant to subsection (a), section eleven of this
article, shall also be entitled to receive from the secretary a
copy of the permit as issued or a copy of the order modifying or
denying the permit if the person requests receipt of them as a part
of the written comments submitted concerning the permit
application.
(h) The surface owners described in subdivisions (1), (2) and
(4), subsection (b) of this section, and the coal owner, operator
or lessee described in subdivision (3) of that subsection is also
entitled to receive notice within seven days but no less than two
days before commencement that well work or site preparation work
that involves any disturbance of land is expected to commence.
(i) Persons entitled to notice pursuant to subsection (b) of
this section may contact the department to ascertain the names and
locations of water testing laboratories in the subject area capable
and qualified to test water supplies in accordance with standard
accepted methods. In compiling that list of names the department
shall consult with the State Bureau for Public Health and local
health departments.
(j) (1) Prior to conducting any seismic activity for seismic
exploration for natural gas to be extracted using horizontal
drilling methods, the company or person performing the activity
shall provide notice to Miss Utility of West Virginia Inc. and to
all surface owners, coal owners and lessees, and natural gas
storage field operators on whose property blasting, percussion or
other seismic-related activities will occur.
(2) The notice shall be provided at least three days prior to
commencement of the seismic activity.
(3) The notice shall also include a reclamation plan in
accordance with the erosion and sediment control manual that
provides for the reclamation of any areas disturbed as a result of
the seismic activity, including filling of shotholes used for
blasting.
(4) Nothing in this subsection decides questions as to whether
seismic activity may be secured by mineral owners, surface owners
or other ownership interests.
§22-6A-11. Procedure for filing written comments; procedures for
considering objections and comments; procedures for
a hearing;
issues to be considered; and newspaper
notice.
(a) All persons described in subsection (b), section ten of
this article may file written comments with the secretary as to the
location or construction of the applicant's proposed well work
within thirty days after the application is filed with the
secretary
and the persons entitled to notice pursuant to paragraphs
(1), (2) and (4), subsection (b), section ten of this article may
request a hearing
.
(b) The applicant shall tender proof of and certify to the
secretary that the notice requirements of section ten of this
article have been completed by the applicant. The certification of
notice to the person may be made by affidavit of personal service,
the return receipt card or other postal receipt for certified
mailing.
(c) (1) The secretary shall promptly review all written
comments filed by the persons entitled to notice under subsection
(b), section ten of this article. The secretary shall notify the
applicant of the character of the written comments submitted no
later than fifteen days after the close of the comment period.
(2) Any objections of the affected coal operators and coal seam owners and lessees shall be addressed through the processes
and procedures that exist under sections fifteen, seventeen and
forty, article six of this chapter, as applicable and as
incorporated into this article by section five of this article.
The written comments filed by the parties entitled to notice under
subdivisions (1), (2), (4), (5) and (6), subsection (b), section
ten of this article shall be considered by the secretary in the
permit issuance process, but the parties are not entitled to
participate in the processes and proceedings that exist under
sections fifteen, seventeen or forty, article six of this chapter,
as applicable and as incorporated into this article by section five
of this article
provided that the persons entitled to notice
pursuant to paragraphs (1), (2) and (4), subsection (b), section
ten of this article who request a hearing may have a hearing as
provided by this section.
(3) The secretary shall retain all applications, plats and
other documents filed with the secretary, any proposed revisions
thereto, all notices given and proof of service thereof and all
orders issued and all permits issued. Subject to the provisions of
article one, chapter twenty-nine-b of this code, the record
prepared by the secretary is open to inspection by the public.
(d) If any person entitled to a notice pursuant to
paragraphs (1), (2) and (4), subsection (b), section ten of this
article requests a hearing on the permit on issues upon which the director can condition or deny issuance of a permit, the director
shall provide such a hearing. The hearing shall provide all
elements for those required for those entitled to constitutional
due process rights to notice and hearing, but does not have to be
provided pursuant to the administrative provisions for contested
cases as provided in article five, chapter twenty-nine-a of this
code. The secretary shall promulgate a procedural rule for the
hearing pursuant to this provision. Appeals shall be pursuant to
article five, chapter twenty-nine-a of this code.
NOTE: The purpose of this bill is to require the Department of
Environmental Protection to issue a procedural rule to allow
surface owners a right to a hearing and appeal of a decision of the
department to issue, condition or deny a permit for certain well
work on the surface owner's land pursuant to the Supreme Court
opinion in Martin v. Hamblet, No. 11-1157 (W.Va., 2012) to re-
examine these procedures.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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