Introduced Version
House Bill 2152 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2152
(By Delegates Manypenny, Barill and Fleischauer)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §22-6A-7 and §22-6A-8 of the Code of
West Virginia, 1931, as amended, all relating to requiring
flowback plans for all work on oil and gas wells; requiring a
flowback tank with a closed loop system that prevents the
release of volatile organic compounds and fugitive pollutants
into the environment; permitting flowback pits to only be used
under certain conditions; and requiring the proper disposal of
drilling mud.
Be it enacted by the Legislature of West Virginia:
That §22-6A-7 and §22-6A-8 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 6A. NATURAL GAS HORIZONTAL WELL CONTROL ACT.
§22-6A-7. Horizontal well permit required; permit fee;
application; soil erosion control plan; well site safety plan; site construction plan; water
management plan; flowback plan; permit fee;
installation of permit number; suspension of a
permit.
(a) It is unlawful for any a person to commence any well work,
including site preparation work which involves any disturbance of
land, for a horizontal well without first securing from the
secretary a well work permit pursuant to this article.
(b) Every permit application filed under this section shall be
on a form as may be prescribed by the secretary, shall be verified
and shall contain the following information:
(1) The names and addresses of: (I) (i) The well operator;
(ii) the agent required to be designated under subsection (h) of
this section; and (iii) every person whom the applicant shall
notify under any a section of this article, together with a
certification and evidence that a copy of the application and all
other required documentation has been delivered to all such
persons;
(2) The names and addresses of every coal operator operating
coal seams under the tract of land on which the well is or may be
located and the coal seam owner of record and lessee of record
required to be given notice by subdivision (6), subsection (a),
section five of this article, if any, if said owner or lessee is not yet operating said coal seams;
(3) The number of the well or such other identification as the
secretary may require; or other identification required by the
secretary;
(4) The well work for which a permit is requested;
(5) The approximate total depth to which the well is to be
drilled or deepened or the actual depth if the well has been
drilled; the proposed angle and direction of the well; the actual
depth or the approximate depth at which the well to be drilled
deviates from vertical, the angle and direction of the nonvertical
well bore until the well reaches its total target depth or its
actual final depth and the length and direction of any actual or
proposed horizontal lateral or well bore;
(6) Each formation in which the well will be completed if
applicable;
(7) A description of any means used to stimulate the well;
(8) If the proposed well work will require casing or tubing to
be set, the entire casing program for the well, including the size
of each string of pipe, the starting point and depth to which each
string is to be set and the extent to which each such string is to
be cemented;
(9) If the proposed well work is to convert an existing well,
all information required by this section, all formations from which
production is anticipated and any plans to plug any portion of the well;
(10) If the proposed well work is to plug or replug the well,
all information necessary to demonstrate compliance with the
legislative rules promulgated by the secretary in accordance with
section thirteen of this article;
(11) If the proposed well work is to stimulate a horizontal
well, all information necessary to demonstrate compliance with the
requirements of subdivision (7), subsection (a), section five of
this article;
(12) The erosion and sediment control plan required under
subsection (c) of this section for applications for permits to
drill;
(13) A well site safety plan to address proper safety measures
to be employed for the protection of persons on the site as well as
the general public. The plan shall encompass all aspects of the
operation, including the actual well work for which the permit was
obtained, completion activities and production activities, and
shall provide an emergency point of contact for the well operator.
The well operator shall provide a copy of the well site safety plan
to the local emergency planning committee established pursuant to
section seven, article five-a, chapter fifteen of this code, for
the emergency planning district in which the well work will occur
at least seven days before commencement of well work or site
preparation work that involves any disturbance of land;
(14) A certification from the operator that; (I) (i) It has
provided the owners of the surface described in subdivisions (1),
(2) and (4), subsection (b), section ten of this article, the
information required by subsections (b) and (c), section sixteen of
this article; (ii) that the requirement was deemed satisfied as a
result of giving the surface owner notice of entry to survey
pursuant to subsection (a), section ten of this article; or (iii)
the notice requirements of subsection (b), section sixteen of this
article were waived in writing by the surface owner; and
(15) The flowback plan required under subsection (m) of this
section for applications for permits to drill; and
_____(15) (16) Any Other relevant information which the secretary
may reasonably require.
(c) (1) An erosion and sediment control plan shall accompany
each application for a well work permit under this article. The
plan shall contain methods of stabilization and drainage, including
a map of the project area indicating the amount of acreage
disturbed. The erosion and sediment control plan shall meet the
minimum requirements of the West Virginia Erosion and Sediment
Control Manual as adopted and from time to time amended by the
department. The erosion and sediment control plan shall become
part of the terms and conditions of any well work permit that is
issued pursuant to this article and the provisions of the plan
shall be carried out where applicable in the operation. The erosion and sediment control plan shall set out the proposed method
of reclamation which shall comply with the requirements of section
fourteen of this article.
(2) For well sites that disturb three acres or more of
surface, excluding pipelines, gathering lines and roads, the
erosion and sediment control plan submitted in accordance with this
section shall be certified by a registered professional engineer.
(d) For well sites that disturb three acres or more of
surface, excluding pipelines, gathering lines and roads, the
operator shall submit a site construction plan, that shall be
certified by a registered professional engineer, and that contains
information that the secretary may require by rule.
(e) In addition to the other requirements of this section, if
the drilling, fracturing or stimulating of the horizontal well
requires the use of water obtained by withdrawals from waters of
this state in amounts that exceed two hundred ten thousand gallons
during any thirty day period, the application for a well work
permit shall include a water management plan, which may be
submitted on an individual well basis or on a watershed basis, and
which shall include the following information:
(1) The type of water source, such as surface or groundwater,
the county of each source to be used by the operation for water
withdrawals and the latitude and longitude of each anticipated
withdrawal location;
(2) The anticipated volume of each water withdrawal;
(3) The anticipated months when water withdrawals will be
made;
(4) The planned management and disposition of wastewater after
completion from fracturing, refracturing, stimulation and
production activities;
(5) A listing of the anticipated additives that may be used in
water utilized for fracturing or stimulating the well. Upon well
completion, a listing of the additives that were actually used in
the fracturing or stimulating of the well shall be submitted as
part of the completion log or report required by subdivision (14),
subsection (a), section five of this article;
(6) For all surface water withdrawals, a water management plan
that includes the information requested in subdivisions (1) through
(5) of this subsection and the following:
(A) Identification of the current designated and existing
water uses, including any public water intakes within one mile
downstream of the withdrawal location;
(B) For surface waters, a demonstration, using methods
acceptable to the secretary, that sufficient in-stream flow will be
available immediately downstream of the point of withdrawal. A
sufficient in-stream flow is maintained when a pass-by flow that is
protective of the identified use of the stream is preserved
immediately downstream of the point of withdrawal; and
(C) Methods to be used for surface water withdrawal to
minimize adverse impact to aquatic life; and
(7) This subsection 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.
(f) An application may propose and a permit may approve two or
more activities defined as well work, however, a separate permit
shall be obtained for each horizontal well drilled.
(g) The application for a permit under this section shall be
accompanied by the applicable bond as required by section fifteen
of this article, the applicable plat required by subdivision (6),
subsection (a), section five of this article and a permit fee of
$10,000 for the initial horizontal well drilled at a location and
a permit fee of $5,000 for each additional horizontal well drilled
on a single well pad at the same location.
(h) The well operator named in the application shall designate
the name and address of an agent for the operator who is the
attorney-in-fact for the operator and who is a resident of the
State of West Virginia upon whom notices, orders or other
communications issued pursuant to this article or article eleven of
this chapter may be served and upon whom process may be served.
Every well operator required to designate an agent under this section shall, within five days after the termination of the
designation, notify the secretary of the termination and designate
a new agent.
(I) (i) The well owner or operator shall install the permit
number as issued by the secretary and a contact telephone number
for the operator in a legible and permanent manner to the well upon
completion of any permitted work. The dimensions, specifications,
and manner of installation shall be in accordance with the rules of
the secretary.
(j) The secretary may waive the requirements of this section
and sections eight, ten, eleven and twenty-four of this article in
any an emergency situation if the secretary deems the action
necessary. In such case, the secretary may issue an emergency
permit which is effective for not more than thirty days unless
reissued by the secretary.
(k) The secretary shall deny the issuance of a permit if the
secretary determines that the applicant has committed a substantial
violation of a previously issued permit for a horizontal well,
including the applicable erosion and sediment control plan
associated with the previously issued permit, or a substantial
violation of one or more of the rules promulgated under this
article and, in each instance, has failed to abate or seek review
of the violation within the time prescribed by the secretary
pursuant to the provisions of subdivisions (1) and (2), subsection (a), section five of this article and the rules promulgated
hereunder, which time may not be unreasonable.
(l) In the event If the secretary finds that a substantial
violation has occurred and that the operator has failed to abate or
seek review of the violation in the time prescribed, the secretary
may suspend the permit on which said violation exists, after which
suspension the operator shall forthwith cease all well work being
conducted under the permit. However, the secretary may reinstate
the permit without further notice at which time the well work may
be continued. The secretary shall make written findings of any
such suspension and may enforce the same in the circuit courts of
this state. The operator may appeal a suspension pursuant to the
provisions of subdivision (23), subsection (a), section five of
this article. The secretary shall make a written finding of any
such determination.
(m) A flowback plan for produced water, using best available
technology, shall accompany each application for a well work permit
under this article. This plan shall minimally include:
_____(1) A flowback tank with closed loop systems that prevents the
release of volatile organic compounds and fugitive pollutants into
the environment, helping to eliminate exposure of public to
potential health hazards which could otherwise be caused by the
igniting of volatile organic compounds from sparks from equipment;
_____(2) An identified, written plan to process and dispose of materials pursuant to the public health and environmental
provisions of this code; and
_____(3) That drilling mud be given a reasonable time to determine
if it will become radioactive or toxic and then properly disposed
of in accordance with its status and the requirements of this code
or federal law; and
_____(4) Any other relevant information which the director may
require by rule.
§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
by all such persons, the secretary may issue the well work permit at any time.
(c) Prior to the issuance of any a 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 subsection(e), section seven of this
article, has been received and approved; and
_____(3) The flowback plan submitted to the secretary under
subsection (m), section seven of this article, has been received,
determined adequate and effective 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, 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 streamflow or runoff 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; and
(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) (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) (i) Upon the issuance of any a 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.
NOTE: The purpose of this bill is to require
flowback plans
for all work on oil and gas wells. The bill requires a flowback
tank with a closed loop system that prevents the release of
volatile organic compounds and fugitive pollutants into the
environment to be part of that plan. The bill permits flowback
pits to be used only under certain conditions. The bill also
requires the proper disposal of drilling mud.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.