Senate Bill No. 272
(By Senators Ross, Dittmar, Helmick, Sharpe,
Wehrle, Yoder, Holliday, Humphreys, Withers and Craigo)
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[Introduced February 4, 1994; referred to the Committee
on Energy, Industry and Mining and then to the Committee
on the Judiciary.]
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A BILL to amend chapter twenty-two of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article seven-a, relating
to public policy concerning coalbed methane wells and units;
declaration of public policy; legislative findings;
definitions; application of article, exclusions, application
of chapter twenty-two-b; chief powers and duties; additional
duties of the shallow gas well review board-meetings,
notice, powers and duties; permit required for coalbed
methane well, permit fee, application, soil erosion control
plan, criminal penalties, review of application; issuance of
permit in absence of objections, copy of permits to county
assessor; authorization to stimulate, alternative procedures
in the absence of authorization; protective devices-when a
coalbed methane well penetrates a workable coalbed or
coalbed from which coal has been removed; performance bonds,
corporate or other surety; notice to owners; procedure for
filing comments; objections to coalbed methane wells by coal
owner or operator, hearings; review board hearing, findings,
order; drilling units and pooling of interests, notice to
owners, review of application, hearing, pooling order,
spacing, escrow account, operator, elections, working
interests, royalty interests, carried interests, conflicting
claims, division ordering operation or drilling units;
validity of unit agreements; spacing; conversion of wells
and ventholes; dry or abandoned wells; plugging and
reclamation of well, notice, objection, plugging order;
judicial review, appeal to supreme court of appeals; legal
representation for board; limitation on actions in trespass;
injuctive relief; civil and criminal penalties; and
construction.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article seven-a, to read
as follows:
ARTICLE 7A. COALBED METHANE WELLS AND UNITS.
§22-7A-1. Declaration of public policy; legislative findings.
(a) (1) The Legislature hereby determines and finds that the
venting of coalbed methane from mine areas and degasification of
coal seams has been and continues to be approved by the state for
the purpose of ensuring the safe recovery of coal; that
commercial recovery and marketing of coalbed methane should insome cases be facilitated because the energy needs of this state
and the United States indicate that the fullest practical
recovery of both coal and coalbed methane should be encouraged;
that the Federal Energy Policy Act of 1992 was enacted in part to
encourage coalbed methane development and the state of West
Virginia should enact legislation consistent with the provisions
of said act; that in order to encourage and ensure the fullest
practical recovery of coal and coalbed methane in this state and
to further ensure the safe recovery of both natural resources, it
is in the public interest to enact this article authorizing
coalbed methane well permits, regulating the design of coalbed
methane wells and recovery techniques, authorizing coalbed
methane well units and pooling of interests therein to provide
all coalbed methane operators and coalbed methane royalty owners
with an opportunity to recover their just and equitable share of
production.
(2) The Legislature further determines and finds that it is
necessary to declare that the expeditious removal of coalbed
methane gas from coalbeds, as permitted under the pooling
provisions of this article, shall not constitute a trespass upon
the rights of any person claiming an interest in gas or coal
found in any coalbed; and that coalbed methane gas vented at any
time under this article or otherwise as provided by this code, in
order to protect coal property and the health and safety of human
life, or for lack of a market for recovered coalbed methane gas,
shall be lawful and shall not constitute waste of coalbed methanegas.
(b) It is hereby declared to be the public policy of this
state and in the public interest to:
(1) Facilitate the expeditious, safe evacuation of coalbed
methane from the coalbeds of this state, and maintain the ability
of coal operators at all times to vent coalbed methane from mine
areas;
(2) Foster, encourage and promote the commercial development
of this state's coalbed methane by establishing procedures for
issuing permits and forming drilling units for coalbed methane
wells without materially affecting the mineability of coal seams
or the safety of mining;
(3) Safeguard, protect and enforce the correlative rights of
coalbed methane well operators and coalbed methane royalty owners
in a pool of coalbed methane to the end that each such operator
and royalty owner may obtain his or her just and equitable share
of production from coalbed methane recovered and marketed under
this article;
(4) Safeguard and protect the mineability of coal found in
workable coal seams during the removal of coalbed methane, as
permitted under this article; and
(5) Create a state permitting procedure and authority to
encourage coalbed methane development consistent with the Federal
Energy Policy Act of 1992;
§22-7A-2. Definitions.
Unless the context in which used clearly requires adifferent meaning, as used in this article:
(a) "Review board" or "board" means the West Virginia
shallow gas well review board provided for in article seven of
this chapter;
(b) "Coalbed" or "coal seam" means a seam of coal, whether
workable or unworkable, and the noncoal roof and floor of said
seam of coal;
(c) "Coalbed methane" means occluded natural gas found in
and produced from a coalbed;
(d) "Coalbed methane royalty owner" means any owner of
coalbed methane in place;
(e) "Coalbed methane well" means any shaft, hole or well
sunk, drilled, bored or dug into the earth for the extraction of
coalbed methane, including a gob well. The term "coalbed methane
well" does not include any shaft, hole or well sunk, drilled,
bored or dug into the earth for core drilling, production of
water, venting gas from a mine area, or degasification of a coal
seam:
Provided,
That, vent holes or degasification holes which
capture coalbed methane for sale or consumption shall be treated
as coalbed methane wells pursuant to this article.
(f) "Coalbed methane well operator" or "operator" means any
person who has the right to operate or does operate a coalbed
methane well;
(g) "Coal operator" means any person who proposes to or does
operate a coal mine;
(h) "Coal owner" means any person who owns or leases a coalseam;
(i) "Chief" means the chief of the office of oil and gas of
the division of environmental protection provided in section
eleven, article one of this chapter;
(j) "Director" means the director of the division of
environmental protection;
(k) "Division" means the division of environmental
protection provided in section seven, article one of this
chapter;
(l) "Gob well" means a well drilled or vent hole converted
to a well pursuant to this article which produces or is capable
of producing coalbed methane and other natural gas from a
destressed zone created above and below a mined-out coal seam by
any prior full seam extraction of the coal;
(m) "Office" means office of oil and gas;
(n) "Person" means any natural person, corporation, firm,
partnership, partnership association, venture, receiver, trustee,
executor, administrator, guardian, fiduciary, other
representative of any kind, any recognized legal entity, or
political subdivision or agency thereof;
(o) "Stimulate" means any action taken to increase the
natural flow of coalbed methane in a coalbed or the inherent
productivity of a coalbed methane well from a coalbed, including,
but not limited to, fracturing, shooting or acidizing but
excluding cleaning out, bailing or workover operations;
(p) "Waste" means (i) physical waste as the term isgenerally understood in the gas industry; (ii) the locating,
drilling, equipping, operating, producing or transporting of
coalbed methane in a manner that causes or tends to cause a
substantial reduction in the quantity of coalbed methane
recoverable from a pool under prudent and proper operations, or
that causes or tends to cause a substantial or unnecessary or
excessive surface loss of coalbed methane; (iii) the drilling of
more wells than are reasonably required to recover efficiently
and economically the maximum amount of coalbed methane from a
pool; or (iv) substantially inefficient, excessive or improper
use, or the substantially unnecessary dissipation of reservoir
pressure. Waste does not include coalbed methane vented or
released from any mine area, the degasification of a coal seam
for the purpose of mining coal, the venting of adulterated
coalbed methane containing inert gases or the plugging of coalbed
methane wells or the conversion of such wells to vent holes for
the purpose of mining coal; and
(q) "Workable coalbed" or "workable coal seam" means any
seam of coal thirty inches or more in thickness, unless a seam of
lesser thickness is being commercially worked or can in the
judgment of the division forseeably be commercially worked and
will require protection if coalbed methane wells are drilled into
or through it.
§22-7A-3. Application of article; exclusions; application of
chapter twenty-two-b.
(a) Except as provided in subsection (b) of this section,the provisions of this article shall apply to all lands located
in this state, under which a coalbed as defined in section two of
this article is located, however owned, including any lands owned
or administered by any government or any agency or subdivision
thereof, over which the state has jurisdiction under its police
power. Except as set out in subsection (c) of this section, the
provisions of this article are in addition to and not in
derogation of or substitution for the provisions of this chapter
or chapters twenty-two-a and twenty-two-b of this code;
(b) This article does not apply to or affect any well
otherwise permitted, approved or regulated under article seven of
this chapter or chapter twenty-two-b of this code, or any coal
mining apparatus utilized for the purpose of venting coalbed
methane gas from workable coal seams under chapter twenty-two-a
of this code; or subsurface boreholes drilled from the mine face
of an underground mine;
(c) Coalbed methane wells shall be treated as wells and
coalbed methane treated as natural gas for purposes of and
subject to the following sections of article one of chapter
twenty-two-b of this code:
(1) The provisions of section three pertaining to the
findings and orders of inspectors concerning violations;
determination of reasonable time for abatement; extensions of
time for abatement; special inspections, notice of findings and
orders;
(2) The provisions of section four providing for the reviewof findings and orders by the chief; special inspection;
annulment, revision of order; notice;
(3) The provisions of section five providing for the
requirements of findings, orders and notices; posting of findings
and orders; judicial review of final orders of chief;
(4) The provisions of section twenty-two providing for a
well log to be filed; contents; authority to promulgate
regulations;
(5) The provisions of section twenty-seven providing for a
cause of action due to an explosion;
(6) The provisions of section twenty-eight providing for
supervision by chief over drilling and reclamation operation;
complaint; hearings; appeals;
(7) The provisions of section twenty-nine providing for
special reclamation funds; fees;
(8) The provisions of section thirty providing for
reclamation requirements;
(9) The provisions of section thirty-one providing for
preventing waste of gas; plan of operation required for wasting
gas in process of producing oil; rejection thereof;
(10) The provisions of section thirty-two providing for the
right of adjacent owner or operator to prevent waste of gas;
recovery of costs;
(11) The provisions of section thirty-three providing for
restraining waste;
(12) The provisions of section thirty-four providing foroffenses; penalties;
(13) The provisions of section thirty-five providing for
civil action for contamination or deprivation of freshwater
source or supply; presumption;
(14) The provisions of section thirty-six providing for
declaration of notice by owners and lessees of coal seams and
setting out the form of such declaration; and
(15) The provisions of section thirty-nine providing for
injunctive relief.
In addition to the foregoing and subject to the same
qualifications, the provisions of article five of chapter twenty-
two-b apply to coalbed methane wells.
§22-7A-4. Chief -- Powers and duties generally.
(a) The chief of the office of oil and gas shall issue
permits and otherwise supervise the execution and enforcement of
the provisions of this article, all subject to the review and
approval of the director.
(b) The chief of the office of oil and gas shall enact rules
necessary to effectuate the purposes of this article, subject to
the review and approval by the director.
(c) In addition to all other powers and duties conferred
upon the chief, the chief shall:
(1) Perform all duties which are expressly imposed upon him
by the provisions of this article, as well as duties assigned to
him by the director;
(2) Perform all duties as the permit issuing authority forthe state in all matters pertaining to the exploration,
development, production, and recovery of coalbed methane in
accordance with the provisions of this article;
(3) Perform such acts as may be necessary or appropriate to
secure to this state the benefits of federal legislation by
establishing programs relating to the exploration, development,
production, and recovery of coalbed methane, which programs are
assumable by the state;
(4) Visit and inspect any coalbed methane well or well site
and call for the assistance of any oil and gas inspectors or
other employees of the division of oil and gas in the enforcement
of the provisions of this article;
(5) Collect the permit application fee for the drilling of
a coalbed methane well;
(6) Collect the permit application fee for a drilling unit.
§22-7A-5. Additional duties of the shallow gas well review board
- meetings; notice, powers and duties generally.
(a) The board shall meet and hold conferences and hearings
at such times and places as are designated by the chairman. The
chairman may call a meeting of the board at any time. The
chairman shall call a meeting of the board (1) upon receipt from
the chief of a completed application for a permit to establish
one or more coalbed methane gas drilling units pursuant to this
article, (2) upon receipt from the chief of a request pursuant to
section eight of this article or comments or objections pursuant
to sections twelve and thirteen of this article, or (3) withintwenty days upon the written request by another member of the
board. Notice of all meetings shall be given to each member of
the board by the chairman at least ten days in advance thereof,
unless otherwise agreed by the members.
(b) At least ten days prior to every meeting of the board
called pursuant to the provisions of this section, the chairman
shall also notify the applicant, all persons to whom copies of
the application were required to be mailed pursuant to the
provisions of section seventeen of this article and all persons
who filed written protests or objections with the board in
accordance with the provisions of section eleven of this article.
(c) A majority of the members of the board constitute a
quorum for the transaction of any business. A majority of the
members of the board is required to determine any issue brought
before it.
(d) The board shall execute and carry out, administer and
enforce the provisions of this article in the manner provided
herein. Subject to the provisions of section three of this
article, the board has jurisdiction and authority over all
persons and property necessary therefor: Provided, That the
provisions of this article does not grant to the board authority
or power to fix prices of coalbed methane gas.
(e) The board may:
(1) Take evidence and issue orders concerning applications
for drilling permits and coalbed methane gas drilling units in
accordance with the provisions of this article;
(2) Promulgate, pursuant to the provisions of chapter
twenty-nine-a of this code, and enforce reasonable rules
necessary to govern the practice and procedure before the board;
(3) Make such relevant investigations of records and
facilities as it deems proper; and
(4) Issue subpoenas for the attendance of and sworn
testimony by witnesses and subpoenas duces tecum for the
production of any books, records, maps, charts, diagrams and
other pertinent documents in its own name or at the request of
any party pursuant to article five, chapter twenty-nine-a.
§22-7A-6. Permit required for coalbed methane well; permit fee;
application; soil erosion control plan; penalties.
(a) It is unlawful for any person to commence, operate,
deepen or stimulate any coalbed methane well, to conduct any
horizontal drilling for the purpose of production of coalbed
methane, or to convert any existing well, vent hole or other hole
to a coalbed methane well, including in any case site preparation
work which involves any disturbance of land, without first
securing from the chief a permit pursuant to this article.
(b) Every permit application filed under this section shall
be verified and shall contain the following:
(1) The names and addresses of (i) the well operator, (ii)
the agent required to be designated under subsection (e) of this
section, and (iii) every person or entity whom the applicant must
notify under any section of this article;
(2) Except for an application to drill or convert aventilation hole to a gob well the name and address of each coal
operator and each coal owner of record or providing a record
declaration of notice pursuant to section thirty-six, article
one, chapter twenty-two-b of any coal seam which is (i)
penetrated by, (ii) within seven hundred fifty horizontal feet of
the proposed well, or (iii) within one hundred vertical feet of
the designated completion coal seams of the proposed well;
(3) The well name or such other identification as the chief
may require;
(4) The approximate depth to which the well is to be
drilled, deepened or converted, the coal seams (stating the depth
and thickness of each seam) in which the well will be completed
for production, and any other coal seams (including the depth and
thickness of each seam) which will be penetrated by the well or
in the case of a gob well a description of the destressed zone;
(5) A description of any stimulation or other means to be
used for obtaining or enhancing production from the well;
(6) If the proposed well 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;
(7) If the proposed operation is to convert an existing
well, as defined in section one, article one, chapter twenty-two-
b of this code, or to convert a vertical ventilation hole to a
coalbed methane well, all information prescribed by this section,all formations from which production is anticipated, and any
plans to plug any portion of the well;
(8) Except for a gob well or vent hole proposed to be
converted to a well, if the proposed coalbed methane well will be
completed in some but not all coal seams for production, a plan
and design for the well which will protect all workable coal
seams which will be penetrated by the well in accordance with
section nine of this article;
(9) If the proposed operations will include horizontal
drilling from the surface, a description of such operations,
including both the vertical and horizontal alignment and extent
of the well from the surface to total depth;
(10) Any other relevant information which the chief may
require by rule.
(c) Each application for a coalbed methane well permit shall
be accompanied by the following:
(1) The applicable bond prescribed by section seven of this
article;
(2) A permit application fee of two hundred fifty dollars;
(3) The erosion and sediment control plan required under
subsection (d) of this section;
(4) The authorization of the coal owner, other documentation
or request and affidavit as required by section eight of this
article;
(5) A plat prepared by a licensed land surveyor or
registered engineer showing the district and county in which thedrill site is located, the name of the surface owner of the drill
site tract, the acreage of the same, the names of the surface
owners of adjacent tracts, the names of all coal owners
underlying the drill site tract, the proposed or actual location
of the well determined by a survey, the courses and distances of
such location from two permanent points or landmarks on the
tract, the number to be given the coalbed methane well, the
proposed date for completion of drilling, the proposed date for
any stimulation of the well, and if horizontal drilling is
proposed, the vertical and horizontal alignment and extent of the
well: Provided, That the chief by rule may waive any of the
requirements of this subdivision (5) in the case of an
application to convert an existing ventilation hole to a well;
and
(6) A certificate by the applicant that the notice
requirements of section eleven of this article have been
satisfied by the applicant. Such certification may be by
affidavit of personal service, or the return receipt card, or
other postal receipt, for certified mailing.
(d) An erosion and sediment control plan shall accompany
each application for a permit. Such 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 office of oil and gas inconsultation with the several soil conservation districts
pursuant to the control program established in this state through
section 208 of the federal Water Pollution Control Act Amendments
of 1972. The erosion and sediment control plan shall become part
of the terms and conditions of a permit and the provisions of the
plan shall be carried out where applicable in operations under
the permit. The erosion and sediment control plan shall set out
the proposed method of reclamation which shall comply with the
requirements of section thirty, article one, chapter twenty-two-b
of this code.
For the purpose of ascertaining whether or not issuance of
any permit will cause or contribute to a pollution problem, the
chief shall consult with the director of the division of natural
resources.
(e) The well operator named in the application shall
designate the name and address of an agent for the operator who
shall be the attorney-in-fact for the operator and who shall be
a resident of the state of West Virginia, upon whom notices,
orders or other communications issued pursuant to this article or
article five-a, chapter twenty, 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 such designation notify the division of such
termination and designate a new agent.
(f) The well owner or operator shall install the permit
number as issued by the chief in a legible and permanent mannerto the well upon completion of any permitted work. The
dimensions, specifications and manner of installation shall be in
accordance with the rules of the chief.
(g) The chief shall deny the issuance of a permit if he
determines that the applicant has committed a substantial
violation of a previously issued permit, including the erosion
and sediment control plan, or a substantial violation of one or
more of the rules promulgated hereunder, and has failed to abate
or seek review of the violation. In the event that the chief
finds that a substantial violation has occurred with respect to
existing operations and that the operator has failed to abate or
seek review of the violation in the time prescribed, he may
suspend the permit on which said violation exists, after which
suspension the operator shall forthwith cease all work being
conducted under the permit until the chief reinstates the permit,
at which time the work may be continued. The chief shall make
written findings of any such determination made by him and may
enforce the same in the circuit courts of this state and the
operator may appeal such suspension pursuant to the provisions of
section seventeen of this article. The chief shall make a
written finding of any such determination.
(h) Any person who violates any provision of this section is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than five thousand dollars, or be imprisoned in
the county jail not more than twelve months, or both fined and
imprisoned.
§22-7A-7. Review of application; issuance of permit in the
absence of objections; copy of permits to county assessor.
The chief shall review each application for a well work
permit and shall determine whether or not to issue a permit.
No permit may be issued less than fifteen days after the
filing date of the application for any well work except 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 by all such persons, the chief may issue the well work
permit at any time.
The chief 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 chief
determines that:
(a) The proposed well work will constitute a hazard to the
safety of persons;
(b) The plan for soil erosion and sediment control is not
adequate or effective;
(c) Damage would occur to publicly owned lands or resources;or
(d) The proposed well work fails to protect fresh water
sources or supplies.
The chief shall promptly review all comments filed. If
after review of the application and all comments received, the
application for a well work permit is approved, and no timely
objection or comment has been filed with the chief or made to the
chief under the provisions of sections eight, twelve or thirteen
of this article, the permit shall be issued, with conditions, if
any.
The chief shall mail a copy of the permit as issued or a
copy of the order denying a permit to any person who submitted
comments or objections to the chief concerning said permit and
requested such copy.
Upon the issuance of any permit pursuant to the provisions
of this article, the chief shall transmit a copy of such permit
to the office of the assessor for the county in which the well is
located.
§22-7A-8. Authorization to stimulate; alternative procedures in
the absence of authorization.
(a) Except for a permit to drill or convert a gob well as
defined in this article, no permit may be issued for a coalbed
methane well until the chief is provided one of the following:
(1) A verified statement submitted with the application that
all coalbeds in which the applicant proposes to complete the well
for production are less than thirty inches in thickness and aretherefore not workable coal beds and that no workable coalbed
lies within one hundred vertical feet above or below the proposed
zones of completion.
(2) A verified statement that the application proposes to
complete the well without the use of stimulation;
(3) A signed authorization from the coal owner or operator
of each workable coal seam which is located within seven hundred
fifty horizontal feet of the proposed well location or within one
hundred vertical feet of the coalbed or beds which the
application proposes to stimulate;
(4) Copies of leases, farmout agreements, operating
agreements or other instruments of title, or other contractual
agreements, based upon which the applicant states he or she has
the right to stimulate the target coal seam.
(b) The chief shall by rule promulgate standards for
stimulation of coal seams in a manner designed to permit
subsequent safe recovery of the coal. Stimulation standards may
be established for specifically identified coal seams but shall
in no event be less stringent than the following:
(1) Fluid injection rates shall not exceed fifteen barrels
per minute per foot of coal in the seam;
(2) Injection pressure, excluding friction pressure shall
not exceed three thousand five hundred pounds per square inch;
(3) The volume of fluid injected shall not exceed a total of
twenty thousand gallons of fluid per foot of coal in the seam;
(4) Propping agent shall not exceed one hundred thousandpounds of sand per treatment;
(5) Only approved materials and agents shall be used.
(c) In lieu of the requirements of subsection (a) of this
section or the request for a hearing prescribed in subsection (d)
of this section an operator may submit a verified statement that
the proposed plan of stimulation as submitted in the permit
application does not exceed the standards set by the chief for
the target coal seams identified in the permit application.
(d) In the absence of the applicant submitting the
documentation or the verified statement described in subsection
(a) above, the operator may submit a request for hearing before
the board accompanied by an affidavit which shall include the
following:
(1) A statement that a coal owner or operator has refused to
provide written authorization to stimulate the well;
(2) A statement detailing the efforts undertaken to obtain
such authorization;
(3) A statement setting out any known reasons for the
authorization not being provided;
(4) A statement or other information in addition to that
provided pursuant to subdivision (5), subsection (b) of section
six of this article necessary to provide prima facie evidence
that the proposed method of stimulation will not render the coal
seam unworkable, or considering all factors, impair mine safety.
(e) Upon receipt of a request and affidavit as set forth in
subsection (b) of this section the chief shall forward theapplication to the board to consider the proposed stimulation or
if other objections or notices are filed requiring a hearing
before the board the request hereunder may be included for
consideration by the board along with such other matters related
to the application.
(f) If the authorization of a coal owner or operator has
been withheld based upon reasons related to safety the chief
shall, concurrent with submission of the request and affidavit to
the board, submit a copy of the application to the director of
the office of mine health and safety who shall review the
application as to issues of mine safety and within thirty days
submit recommendations to the board.
§22-7A-9. Protective devices--when a coalbed methane well
penetrates workable coal bed; when a coalbed methane well is
drilled through horizon of coal bed from which coal has been
removed.
(a) Except for those coalbeds which the coalbed methane
operator proposes to complete for production of coalbed methane
or where a ventilation hole is being converted to a well, when a
well penetrates one or more workable coal beds, the well operator
shall run and cement a string of casing in the hole through the
workable coalbed or beds in such a manner as will exclude all
oil, gas or gas pressure as may be found in such coalbed or beds.
Such string of casing shall be circulated and cemented in such a
manner as provided for in reasonable rules promulgated by the
chief in accordance with the provisions of chapter twenty-nine-a. After any such string of casing has been so run and cemented to
the surface, drilling may proceed to the permitted depth.
(b) When a coalbed methane well is drilled through the
horizon of a coalbed from which the coal has been removed, the
hole shall be drilled at least thirty feet below the coalbed, of
a size sufficient to permit the placing of a liner which shall
start not less than twenty feet above it. Within this liner,
which may be welded to the casing to be used, shall be centrally
placed the largest sized casing to be used in the well, and the
space between the liner and casing shall be filled with cement as
they are lowered into the hole. Cement shall be placed in the
bottom of the hole to a depth of twenty feet to form a sealed
seat for both liner and casing. Following the setting of the
liner, drilling shall proceed in the manner provided above.
Should it be found necessary to drill through the horizon of two
or more workable coalbeds from which the coal has been removed,
such liner shall be started not less than twenty feet below the
lowest such horizon penetrated and shall extend to a point not
less than twenty feet above the highest such horizon.
(c) The chief may grant variances to the requirements of
this section where such variance would promote the extraction of
coalbed methane without affecting mine safety.
§22-7A-10. Performance bonds; corporate surety or other
security.
(a) No permit may be issued pursuant to this article unless
a bond is or has been furnished as provided in this section.
(b) A separate bond may be furnished for a particular
coalbed methane well in the sum of ten thousand dollars, payable
to the state of West Virginia, conditioned on full compliance
with all laws and rules relating to the drilling, operation and
stimulation of such wells, to the plugging, abandonment and
reclamation thereof, and for furnishing such reports and
information as may be required by the chief.
(c) When an operator makes or has made application for
permits to drill, operate or stimulate more than one coalbed
methane well or a combination of coalbed methane wells and wells
regulated under article one, chapter twenty-two-b of this code,
the operator may, in lieu of furnishing a separate bond, furnish
a blanket bond in the sum of fifty thousand dollars, payable to
the state of West Virginia, and conditioned as stated in
subsection (b) of this section.
(d) All bonds submitted hereunder shall have a corporate
bonding or surety company authorized to do business in the state
of West Virginia as surety thereon, or in lieu of a corporate
surety, the operator may elect to deposit with the chief cash,
collateral securities or any combination thereof as provided for
in subsection twenty-six-d, article one, chapter twenty-two-b of
this code.
(e) For purposes of bonding requirements, a coalbed methane
well shall be treated as a well, as defined and regulated in
article one, chapter twenty-two-b of this code, and the
provisions of subsections (e), (g), (h), (i) and (j) of sectiontwenty-six thereof apply.
§22-7A-11. Notice to owners.
(a) Prior to filing an application for a permit for a
coalbed methane well under this article, the applicant shall
deliver by personal service or by certified mail, return receipt
requested, copies of the application, well plat and erosion and
sediment control plan to the following:
(1) The owners of record of the surface of the tract on
which the coalbed methane well is to be located;
(2) The owners of record of the surface of any tract which
is to be utilized for roads or other land disturbance;
(3) Each owner of record and each operator of record of any
coal seam whose coal seam will be penetrated by the coalbed
methane well;
(4) Each coal owner of record or coal operator of record
whose coal seam lies within seven hundred fifty horizontal feet
of the well location or one hundred vertical feet above or below
each proposed completion coal seam of the well;
(5) In the case of a proposed horizontal well each coal
owner of record or coal operator of record within seven hundred
fifty horizontal feet of any point of the proposed well or within
one hundred vertical feet above or below the horizontal length of
the well; and
(6) Each owner and lessee of record and each operator of
natural gas surrounding the well bore and existing in formations
above the top of the uppermost member of the "Onondaga Group" orat a depth less than six thousand feet, whichever is shallower.
Notices to gas operators shall be sufficient if served upon the
agent of record with the office of oil and gas.
(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, and 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 chief 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 and operators occupying
or operating on 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 comment and objection, who may
file comment and objection, the name and address of the chief
with whom the comment and objection must be filed, the ability to
obtain additional information from the chief, the fact that such
persons may request notice of the permit decision, and a list ofpersons qualified to test water as provided in this section.
(d) Any person entitled to submit comment or objection 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 comment or objection concerning
said permit application.
(e) Persons entitled to notice may contact the district
office of the office of oil and gas 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 and local health departments.
§22-7A-12. Procedure for filing comments.
All persons described in subsection (a), section eleven of
this article may file comments with the chief as to the location
or construction of the applicant's proposed well within fifteen
days after the application is filed with the chief.
§22-7A-13. Objections to coalbed methane wells by coal owner or
operator; hearings.
The owner or operator of any coal seam whose coal seam is to
be penetrated by a coalbed methane well may, within fifteen days
from the receipt of notice required by section eleven of this
article, file objections in writing to such proposed drilling
with the chief, setting out the grounds on which such objections
are based.
§22-7A-14. Review board hearing; findings; order.
(a) If comment or objection is filed under section twelve or
thirteen of this article, or if a request and affidavit under
section eight is filed, the chief shall forthwith provide to the
chairman of the review board a copy of any such objection or
comment, together with the application for a permit for the
coalbed methane well in question, the plat filed therewith and
such other information accompanying the permit as may relate to
the comment or grounds for the objection.
(b) The review board shall forthwith schedule a hearing for
the purpose of considering such objection, comment or request and
affidavit. Notice shall be given fifteen days in advance to any
person filing comment or objection to any applicant, and to all
nonconsenting coal owners or operators identified on the
application, and the review board shall hold such hearing within
thirty days after the deadline for filing objection or comment.
At such hearing the review board shall consider the matters
raised and shall base its decision on the following:
(1) Whether the drilling location is above or in close
proximity to any mine opening, shaft, entry, travelway, airway,
haulageway, drainageway or passageway or to any proposed
extension thereof, any abandoned, operating coal mine or any coal
mine already surveyed and platted but not yet being operated;
(2) Whether the proposed drilling can reasonably be done
through an existing or planned pillar of coal, or in close
proximity to an existing or planned pillar of coal, taking into
consideration the surface topography;
(3) Whether the proposed well can be drilled safely, taking
into consideration the dangers from creeps, squeezes or other
disturbances due to the extraction of coal;
(4) The extent to which the proposed drilling location
unreasonably interferes with the safe recovery of coal and gas;
(5) The extent to which the proposed drilling location will
unreasonably interfere with present or future coal mining
operations on the surface including, but not limited to,
operations subject to the provisions of article three, chapter
twenty-two-a of this code;
(6) The feasibility of moving the proposed drilling location
to a mined-out area, below the coal outcrop, or to some other
location;
(7) The feasibility of a drilling moratorium for not more
than one year in order to permit the completion of imminent coal
mining operations;
(8) The methods proposed for the recovery of coal and gas;
(9) The practicality of locating the well on a uniform
pattern with other wells;
(10) The surface topography and use; and
(11) Whether any stimulation of the coal seam will render
such seam or any other workable coal seams unworkable or unsafe
for mining including in its considerations any recommendation of
the director of the office of miner's health, safety and training
submitted pursuant to section eight of this article.
(c) The review board shall enter a written order containingfindings of fact and conclusions which address any relevant
considerations in subsection (b) of this section and based
thereon shall issue and file with the chief a written order
directing him to:
(1) Refuse a drilling permit; or
(2) Issue a drilling permit for the proposed drilling
location; or
(3) Issue a drilling permit for an alternate drilling
location different from that requested by the applicant; or
(4) Issue a drilling permit either for the proposed drilling
location or for an alternative drilling location different from
that requested by the applicant, but not allow the drilling of
the well for a period of not more than one year from the date of
issuance of such permit.
(5) Issue a permit with modifications of the drilling,
casing, or stimulation program which addresses objections raised
in the hearing and in the case of stimulation is consistent with
any recommendation submitted by the director.
Upon receipt of such board order, the chief shall promptly
undertake the action directed by the board:
Provided,
That all
other provisions of this article have been complied with. All
permits issued by the chief pursuant to this section shall be
effective ten days after issuance unless the review board orders
the chief to stay the effectiveness of a permit for a period not
to exceed thirty days from the date of issuance.
(d) The order of the review board shall incorporate anyrecommendations of the director of the office of miner's health,
safety and training unless the board determines that there is
clear and convincing evidence on the record supporting a finding,
conclusion or order inconsistent with such recommendation.
If a permit is issued, the chief shall indicate the approved
drilling location on the plat filed with the application for a
permit and shall number and keep an index of and docket each
plat, the name of the well operator, the names and addresses of
all persons notified, the dates of conferences, hearings and all
other actions taken by the chief and the review board. The chief
shall also prepare a record of the proceedings, which record
shall include all applications, plats and other documents filed
with the chief, all notices given and proof of service thereof,
all orders issued, all permits issued and a transcript of the
hearing. The record prepared by the chief shall be open to
inspection by the public.
(e)(1) In lieu of the hearing prescribed in this section,
the parties may request that one or more of the issues set for
hearing be submitted to binding arbitration before a panel of
three arbitrators, one of whom shall be selected by the
applicant, one of whom shall be selected by the objecting or
nonconsenting parties and one of whom shall be selected by the
other two arbitrators, or in the event agreement by the two
arbitrators cannot be reached, selection shall be made by the
director of the division of environmental protection.
(2) The board shall promulgate rules and procedures forconducting such arbitrations and all proceedings before the board
shall be held in abeyance pending the issuance of the arbitrators
findings.
§22-7A-15. Drilling units and pooling of interests.
(a) In the absence of a voluntary agreement, an operator
having an interest in forming a drilling unit may file an
application with the chief to pool (i) separately owned interests
in a single tract, (ii) separately owned tracts, (iii) separately
owned interests in any tract, and (iv) any combination of (i),
(ii) and (iii) to form a drilling unit for the production of
coalbed methane from one or more coalbed methane wells.
(b) The application for a drilling unit may accompany the
application for a permit for a coalbed methane well or be filed
as a supplement to the permit application. Such application
shall be verified by the applicant and contain the following
information for each well in the proposed unit:
(1) The identity of the well and operator as set out in the
well permit application;
(2) The well number, if one has been assigned;
(3) The acreage of the proposed unit, all separate tracts
which are included in the proposed unit, and where parts of
tracts are included, the acreage of such parts;
(4) The district and county in which the unit is located;
(5) The names and addresses of the owners of the coal and
gas underlying each separate tract, or the portion thereof which
is to be included in the unit, any lessees or operators thereof,any coalbed methane royalty owners not otherwise named, and any
other claimants thereto known to the applicant. When any coal
seam is separately owned, the list of names shall identify such
separate ownership giving the names of the separately owned
seams;
(6) A statement describing the actions taken by the
applicant to obtain a voluntary agreement from each interest
owner or claimant named in the application from which agreement
has not been obtained;
(7) Other pertinent and relevant information as the chief
may prescribe by rules.
(c) The application for a drilling unit shall be accompanied
with the following:
(1) A plat prepared by a licensed land surveyor or
registered professional engineer showing the location of the
coalbed methane well or wells, or proposed well or wells, the
boundary and acreage of the proposed drilling unit, the boundary
and acreage of each tract contained in the unit and, where parts
of tracts are included, the boundary and acreage of such parts,
a name identification of each tract, and the district and county
in which the unit is located. All boundaries must be shown with
courses and distances;
(2) A permit application fee of two hundred fifty dollars;
(3) A certificate by the applicant that the notice
requirements of section eleven of this article were met by the
applicant. Such certification may be by affidavit of personalservice, or the return receipt card, or other postal receipt, for
certified mailing;
(4) An estimate of the cost of drilling, completing,
equipping, operating, plugging and abandoning any well or wells
in the proposed unit.
§22-7A-16. Same--Notice to owners.
(a) At least thirty days prior to the date set for hearing
under section fourteen of this article, the applicant shall
deliver by personal service or by certified mail, return receipt
requested, notice to the following:
(1) Each coal owner and coal operator of any coal seam
underlying any tract or portion thereof which is proposed to be
included in the unit;
(2) Each owner and lessee of record and each operator of
natural gas surrounding the well bore and existing in formations
above the top of the uppermost member of the "Onondaga Group" or
at a depth less than six thousand feet, whichever is shallower.
Notices to gas operators shall be sufficient if served upon the
agent of record with the office of oil and gas;
(3) Any coalbed methane royalty owner to the extent not
otherwise named; and
(4) Any other person or entity known to the operator to have
an interest in the coal or natural gas.
(b) The notice required by subsection (a) of this section
shall specify a time and place for a conference and a hearing on
this application, shall advise the persons notified that theapplicant has filed an application for a drilling unit for the
production of coalbed methane, that they may be present and
object or offer comments to the formation of the proposed unit,
and shall be accompanied with copies of (i) the permit
application for the coalbed methane well, (ii) the permit
application for the drilling unit, and (iii) the plat of the
drilling unit.
§22-7A-17. Same--Review of application; hearing; pooling order;
spacing; escrow account; operator; elections; working
interests, royalty interests, carried interests, conflicting
claims, division order.
(a) Prior to the time fixed for a hearing under subsection
(b) of this section the board shall also set a time and place for
a conference between the proposed applicant to operate a coalbed
methane drilling unit and all persons identified in the
application as having an interest in the coalbed methane or being
a claimant if such interests are disputed, who have not entered
into a voluntary agreement. At such conference the applicant and
such other persons present or represented having an interest in
the proposed unit shall be given an opportunity to enter into
voluntary agreements for the development of the unit upon
reasonable terms and conditions.
No order may be issued by the board as to any unit unless
the applicant submits at the hearing a verified statement setting
forth the results of the conference. If agreement is reached
with all parties to the conference, the board shall find the unitis a voluntary unit and issue an order consistent with such
finding.
(b) The chief shall, upon request of a proposed applicant
for a drilling unit, provide a convenient date and time for a
hearing on the application for a drilling unit, which hearing
date shall be no sooner than thirty-five days nor more than sixty
days of the date the request for hearing is made. The chief
shall review the application and on the date specified for a
hearing shall conduct a public hearing. The chief shall take
evidence, making a record thereof and consider:
(1) The area which may be drained efficiently and
economically by the proposed coalbed methane well or wells;
(2) The plan of development of the coal and the need for
proper ventilation of any mines or degasification of any affected
coal seams;
(3) The nature and character of any coal seam or seams which
will be affected by the coalbed methane well or wells;
(4) The surface topography and property lines of the lands
underlaid by the coal seams to be included in the unit;
(5) Evidence relevant to the proper boundary of the drilling
unit;
(6) The nature and extent of ownership of each coalbed
methane royalty owner or claimant and whether conflicting claims
exist;
(7) Whether the applicant for the drilling unit proposes to
be the operator of the coalbed methane well or wells within theunit; and if so, whether such applicant has a lease or other
agreement from the owners or claimants of a majority interest in
the proposed drilling unit;
(8) Whether a disagreement exists among the coalbed methane
royalty owners or claimants over the designation of the operator
for any coalbed methane wells within the unit, and if so,
relevant evidence to determine which operator can properly and
efficiently develop the coalbed methane within the unit for the
benefit of the majority of the coalbed methane royalty owners;
(9) If more than one person is interested in operating a
well within the unit, the estimated cost submitted by each such
person for drilling, completing, operating and marketing the
coalbed methane from any proposed well or wells; and
(10) Any other available geological or scientific data
pertaining to the pool which is proposed to be developed.
(c) The chief shall take into account the evidence
introduced, comments received and any objections at the hearing,
and if satisfied that a drilling unit should not be established,
shall enter an order denying the application. If the chief is
satisfied that a drilling unit should be established, he shall
enter a pooling order establishing a drilling unit. Such pooling
order shall:
(1) Establish the boundary of the proposed unit, making such
adjustments in the boundary as is just;
(2) Authorize the drilling and operation of a coalbed
methane well or wells for production of coalbed methane from thepooled acreage;
(3) Establish minimum distances for any wells in the unit
and for other wells which would drain the pooled acreage;
(4) Designate the operator who will be authorized to drill,
complete and operate any well or wells in the unit;
(5) Establish a reasonable fee for the operator for
operating costs, which shall include routine maintenance of the
well and all accounting necessary to pay all expenses, royalties
and amounts due working interest owners;
(6) Where no conflicting claims to ownership exist, set
forth the fractional interests of the coalbed methane royalty
owners and lessees, considering the extent to which the acreage
of each owner bears to the total acreage in the drilling unit,
and making a just and equitable distribution based upon the
respective interests of such owners and lessees. Such fractional
interests shall be expressed as a decimal carried to the sixth
place;
(7) Provide for the establishment of an escrow account into
which the payment of the estimated costs of drilling, completing,
equipping, operating, plugging and abandoning the well or wells
and the proceeds from production of coalbed methane shall be
deposited for distribution as follows:
(A) Each owner electing to be a working interest owner,
including the operator, shall deposit such owner's proportionate
share of the estimated costs of drilling, completing, equipping,
operating, plugging and abandoning the proposed coalbed methanewell or wells. Such deposits shall be made within fifteen days
after making the election to be a working interest owner. Where
conflicting claims exist, each claimant shall deposit an amount
claimed to be that claimant's proportionate share;
(B) Amounts in the escrow account shall be used for the
reasonable costs of drilling, completing, equipping, operating,
plugging and abandoning any coalbed methane well or wells in the
unit and payments for ad valorem taxes and such other costs and
expenses as the chief may provide in the pooling order or any
supplement thereto;
(C) All proceeds from sales of coalbed methane shall be
deposited and distributed in accordance with the division order
provided for in subsection (A) of this section.
(8) Such other findings and provisions as are appropriate
for each order.
(d) The operator designated in such order shall be
responsible for all costs and expenses of drilling, completing,
equipping, operating, plugging and abandoning the well, shall
market all production therefrom, shall collect all proceeds
therefor and deposit the same in the escrow account, and shall
distribute such proceeds in accordance with the division order
issued by the chief.
(e) Upon issuance of the pooling order the coalbed methane
royalty owners or any lessee of any such owners or any claimants
thereto may elect one of the following within fifteen days after
issuance of the order:
(1) Option 1. To become a working interest owner by
participating in the risk and cost of the well. Within fifteen
days after this election, such owner, lessee or claimant shall
deposit in the escrow account such owner's proportionate share or
claimed proportionate share of the estimated costs of the well;
(2) Option 2. To participate in the operation of the well
as a carried interest owner;
(3) Option 3. To sell or lease his or her interest to the
operator on such terms as the parties may agree, or if unable to
agree, upon such terms as are set by the board in its order. Any
owner who fails to make an election within the fifteen days
prescribed herein shall be deemed to have elected this Option 3.
(f) The working interest in the well shall include the right
to participate in decisions regarding expenditures and the
obligation to pay for expenditures in excess of operating costs,
taxes and other costs and expenses allowed in the pooling order.
The working interest shall exist in (i) all owners who
participate in the risk and cost of drilling and completing the
well and (ii) carried interest owners after recoupment provided
in subsection (h) of this section. The working interest owners'
net revenue share shall be seven eighths of the proceeds of sales
of coalbed methane at the wellhead after deduction of operating
costs, taxes and other costs and expenses allowed in a pooling
order. Unless the working interest owners otherwise agree, the
working interest owners shall share in all costs and decisions in
proportion to their ownership interest in the unit. If anyworking interest owner deposits amounts in the escrow account
which is less than actual costs, such owner shall make a deposit
for the deficiency.
(g) Where a coalbed methane royalty owner elects to become
a carried interest owner, such owner shall be entitled to his
proportionate share of the working interest after the other
working interest owners have recouped three hundred percent of
the reasonable capital costs of the well or wells, including
drilling, completing, equipping, plugging and abandoning and any
further costs of reworking or other improvements of a capital
nature.
(h) Where conflicting claims of ownership to the coalbed
methane exist, all funds relating to such conflicting claims
shall be held in the escrow account until such conflicting claims
are resolved either by the voluntary agreement of the owners or
claimants or a final judicial determination of such ownership is
made.
(i) After each coalbed methane royalty owner has made, or
has been deemed to have made, an election under subsection (d) of
this section, and after any conflicting claims to coalbed methane
have been resolved as provided in subsection (h) of this section,
the chief shall enter a division order which shall set out the
net revenue interest of each working interest owner, including
each carried interest owner, and the royalty interest of each
coalbed methane royalty owner. Thereafter, payments from the
escrow account shall be made in accordance with the divisionorder. The fractional interest of each owner shall be expressed
as a decimal carried to the fourth place.
§22-7A-18. Operation on drilling units.
All operations including, but not limited to, the
commencement, drilling or operation of a well upon a drilling
unit for which a pooling order has been entered, are hereby
deemed to be operations on each separately owned tract in the
drilling unit by the several owners. That portion of the
production allocated to a separately owned tract included in a
drilling unit is hereby deemed to be produced from that tract.
§22-7A-19. Validity of unit agreements.
No agreement between or among coalbed methane operators or
owners entered into for the development of coalbed methane or
forming drilling units therefor may be held to violate the
statutory or common law of this state prohibiting monopolies or
acts, arrangements, contracts, combinations or conspiracies in
restraint of trade or commerce.
§22-7A-20. Spacing.
No coalbed methane well may be drilled closer than one
hundred feet of the outside boundary of the coal tract from which
coalbed methane is or will be produced unless otherwise provided
in a pooling order issued by the chief, an order issued by the
review board or under the terms of a voluntary pooling agreement.
§22-7A-21. Conversion of wells and ventholes.
(a) When an existing oil or gas well is proposed to be
converted to produce coalbed methane, the operator shall submitan application for permit as set forth in section six of this
article.
(b) A coalbed methane well may be converted to a ventilation
hole upon the filing with the division, a notice by the coalbed
methane well operator or coal operator proposing to make such
conversion, and assumption by the coalbed methane well operator
or coal operator of all applicable bonding requirements as set
forth in section ten of this article, all applicable reclamation
as required by section thirty, article one, chapter twenty-two-b,
all applicable plugging requirements as set forth in section
twenty-three of this article and compliance with the requirements
of chapter twenty-two-a regarding ventilation holes.
§22-7A-22. Dry or abandoned wells.
Any coalbed methane well which is completed as a dry hole or
which is not in use for a period of twelve consecutive months
shall be presumed to have been abandoned and shall promptly be
plugged by the operator in accordance with the provisions of this
article, unless the operator furnishes satisfactory proof to the
chief that there is a bona fide future use for such well in
accordance with the rules promulgated under article one, chapter
twenty-two-b of this code.
§22-7A-23. Plugging and reclamation of well; notice; objection;
plugging order.
All dry or abandoned coalbed methane wells, or coalbed
methane wells presumed to be abandoned, shall be plugged and
reclaimed. Prior to the commencement of plugging operations theoperator shall give thirty days' advance notice to the chief and
to all coal owners and operators whose names and addresses would
be required for a permit application under section six,
subsection (b), subdivision (2), of this article as of the date
of the notice. Such notice shall set out the number and other
identification of the well, a copy of the well plat, the date
plugging will commence, and the manner and method of plugging.
Any coal owner or operator whose coal seam is penetrated by
such well may convert the well to a vent hole or otherwise take
the well:
Provided,
That such coal owner or operator furnishes
a bond for plugging as required under section five, article five,
chapter twenty-two-b of this code and assumes ownership of and
responsibility for the well.
Any coal owner or operator whose seam is affected by the
well may within fifteen days after receipt of notice file comment
or objection with the chief with respect to the proposed manner
or method of plugging. The chief shall consider any such comment
or objection and issue an order specifying the manner and method
of plugging and reclamation.
The chief shall promulgate rules specifying the manner and
method of plugging coalbed methane wells which shall provide an
equivalent level of protection to workable coalbeds as is
provided for by section twenty-four, article one, chapter twenty-
two-b of this code.
§22-7A-24. Judicial review; appeal to supreme court of appeals;
legal representation for board.
(a) Any person adversely affected by an order of the chief
or board is entitled to judicial review. All of the pertinent
provisions of section four, article five, chapter twenty-nine-a
of this code apply to and govern the judicial review.
(b) The judgment of the circuit court is final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
(c) Legal counsel and services for the chief or board in all
appeal proceedings in any circuit court and the supreme court of
appeals shall be provided by the attorney general or his or her
assistants and in any circuit court by the prosecuting attorney
of the county, all without additional compensation. The chief or
board, with the written approval of the attorney general, may
employ special counsel to represent the chief or board at any
appeal proceedings.
§22-7A-25. Limitation on actions in trespass.
In any case where title to subsurface minerals have been
severed in such a way that title to natural gas underlying such
tract and title to coal underlying such tract are in different
persons, it shall be an affirmative defense to any action for
willful trespass arising from the drilling and commercial
production of methane from any coal seam underlying such tract,
that the operator of such well permitted, drilled and completed
such well under color of title of any instrument, deed, or lease
for oil and gas purposes, or an instrument, deed or lease forcoal mining purposes.
§22-7A-26. Injunctive relief.
(a) Whenever it appears to the board that any person has
been or is violating or is about to violate any provision of this
article, any rule promulgated by the board hereunder, any order
or any final decision of the board, the board may apply, in the
name of the state, to the circuit court of the county in which
the violations or any part thereof has occurred, is occurring or
is about to occur, or to the judge thereof in vacation, for an
injunction against such person and any other persons who have
been, are or are about to be, involved in any practices, acts or
omissions, so in violation, enjoining such person or persons from
any such violation or violations. Such application may be made
and prosecuted to conclusion whether or not any such violation or
violations have resulted or shall result in prosecution or
conviction under the provisions of section seventeen of this
article.
(b) Upon application by the board, the circuit courts of
this state may by mandatory or prohibitory injunction compel
compliance with the provisions of this article, the rules
promulgated by the board hereunder and all orders of the board.
The court may issue a temporary injunction in any case pending a
decision on the merits of any application filed. Any other
section of this code to the contrary notwithstanding, the state
is not required to furnish bond or other undertaking as a
prerequisite to obtaining mandatory, prohibitory or temporaryinjunctive relief under the provisions of this article.
(c) The judgment of the circuit court upon any application
permitted by the provisions of this section is final unless
reversed, vacated or modified on appeal to the supreme court of
appeals. Any such appeal shall be sought in the manner and
within the time provided by law for appeals from circuit courts
in other civil actions.
(d) The board shall be represented in all such proceedings
by the attorney general or his or her assistants and in
proceedings in the circuit courts by the prosecuting attorneys of
the several counties as well, all without additional
compensation. The board, with the written approval of the
attorney general, may employ special counsel to represent the
board in any such proceedings.
(e) If the board refuses or fails to apply for an injunction
to enjoin a violation or threatened violation of any provision of
this article, any rule promulgated by the board hereunder or any
order or final decision of the board, within ten days after
receipt of a written request to do so by any person who is or
will be adversely affected by such violation or threatened
violation, the person making such request may apply in his or her
own behalf for an injunction to enjoin the violation or
threatened violation in any court in which the board might have
brought suit. The board shall be made a party defendant in the
application in addition to the person or persons violating or
threatening to violate any provision of this article, any rulepromulgated by the board hereunder or any order of the board.
The application shall proceed and injunctive relief may be
granted without bond or other undertaking in the same manner as
if the application had been made by the chairman.
§22-7A-27. Penalties.
(a) Any person, who violates any term or condition of a
permit issued under this article, which violation is found by the
board to have rendered unmineable all or a portion of a workable
coal seam, is subject to civil penalties, to be imposed and
collected by the board in an amount not to exceed the reasonably
expected net profit lost to the coal owner as a result thereof.
All such penalties collected shall be transferred to the special
reclamation fund as provided by section twenty-nine, article one,
chapter twenty-two-b of this code.
(b) Any person who violates any provision of this article,
any of the rules promulgated by the board hereunder or any order
of the board other than a violation governed by the provisions of
subsection (c) of this section, is guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not more than one
thousand dollars.
(c) Any person who, with the intention of evading any
provision of this article, any of the rules promulgated by the
board hereunder or any order of the board, shall make or cause to
be made any false entry or statement in any application or other
document permitted or required to be filed under the provisions
of this article, any of the rules promulgated by the boardhereunder or any order of the board, is guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not more than five
thousand dollars, or imprisoned in the county jail not more than
six months, or both fined and imprisoned.
(d) Any person who knowingly aids or abets any other person
in the violation of any provision of this article, any of the
rules promulgated by the board hereunder or any order or final
decision of the board, is subject to the same penalty as that
prescribed in this article for the violation by such other
person.
§22-7A-28. Construction.
This article shall be liberally construed so as to
effectuate the declaration of public policy set forth in section
one of this article.
NOTE: The purpose of this bill is to provide a declaration
of public policy concerning coalbed methane wells and units.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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