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Introduced Version House Bill 3046 History

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HB3046 intr
H. B. 3046


          (By Delegates Manypenny and Fleischauer)
          [Introduced March 22, 2013; referred to the
          Committee on the Judiciary then Finance.]




A BILL to amend and reenact §22-6-9, §22-6-10 and §22-6-11 of the Code of West Virginia, 1931, as amended; and to amend and reenact §22-6A-8, §22-6A-10 and §22-6A-11 of said code, all relating to requiring the Department of Environmental Protection to issue a procedural rule to allow surface owners a right to a hearing and appeal of a decision of the department to issue, condition or deny a permit for certain well work on the surface owner's land.
Be it enacted by the Legislature of West Virginia:
     That §22-6-9, §22-6-10 and §22-6-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §22- 6A-8, §22-6A-10 and §22-6A-11 of said code be amended and reenacted, all to read as follows:
ARTICLE 6. OFFICE OF OIL AND GAS; OIL AND GAS WELLS; ADMINISTRATION; ENFORCEMENT.
§22-6-9. Notice to property owners.
               (a) No later than the filing date of the application, the applicant for a permit for any well work shall deliver by personal service or by certified mail, return receipt requested, copies of the application, well plat and erosion and sediment control plan required by section six of this article to each of the following persons:
               (1) The owners of record of the surface of the tract on which the well is, or is to be located; and
               (2) The owners of record of the surface tract or tracts overlying the oil and gas leasehold being developed by the proposed well work, if such surface tract is to be utilized for roads or other land disturbance as described in the erosion and sediment control plan submitted pursuant to section six of this article.
               (b) If more than three tenants in common or other coowners of interests described in subsection (a) of this section hold interests in such lands, the applicant may serve the documents required upon the person described in the records of the sheriff required to be maintained pursuant to section eight, article one, chapter eleven-a of this code, or publish in the county in which the well is located or to be located a Class II legal advertisement as described in section two, article three, chapter fifty-nine of this code, containing such notice and information as the director shall prescribe by rule, with the first publication date being at least ten days prior to the filing of the permit application: Provided, That all owners occupying the tracts where the well work is, or is proposed to be located at the filing date of the permit application shall receive actual service of the documents required by subsection (a) of this section.
               (c) Materials served upon persons described in subsections (a) and (b) of this section shall contain a statement of the methods and time limits for filing comments and requesting a hearing
, who may file comments and request a hearing and the name and address of the director for the purpose of filing comments, requesting a hearing and obtaining additional information and a statement that such persons may request, at the time of submitting comments, notice of the permit decision and a list of persons qualified to test water as provided in this section.
               (d) Any person entitled to submit comments shall also be entitled to receive a copy of the permit as issued or a copy of the order denying the permit if such person requests the receipt thereof as a part of the comments concerning said permit application.
               (e) Persons entitled to notice may contact the district office of the division to ascertain the names and location of water testing laboratories in the area capable and qualified to test water supplies in accordance with standard accepted methods. In compiling such list of names the division shall consult with the State Bureau of Public Health and local health departments.
§22-6-10. Procedure for filing comments; certification of notice.
               (a) All persons described in subsections (a) and (b), section nine of this article may file comments
and may also request a hearing with the director as to the location or construction of the applicant's proposed well work within fifteen days after the application is filed with the director.
               (b) Prior to the issuance of any permit for well work, the applicant shall certify to the director that the requirements of section nine of this article have been completed by the applicant. Such certification may be by affidavit of personal service or the return receipt card, or other postal receipt for certified mailing.
§22-6-11. Review of application; issuance of permit in the absence of objections; copy of permits to county assessor.
               The director shall review each application for a well work permit and shall determine whether or not a permit shall be issued.
               No permit shall be issued less than fifteen days after the filing date of the application for any well work except plugging or replugging; and no permit for plugging or replugging shall be issued less than five days after the filing date of the application except a permit for plugging or replugging a dry hole: Provided, That if the applicant certifies that all persons entitled to notice of the application under the provisions of this article have been served in person or by certified mail, return receipt requested, with a copy of the well work application, including the erosion and sediment control plan, if required, and the plat required by section six of this article, and further files written statements of no objection
waiving, in the case of those entitled notice under section nine of this article, the right to a hearing by all such persons, the director may issue the well work permit at any time.
               If any person entitled to a notice pursuant to subsections (a) and (b) of section nineteen of this article requests a hearing on the permit on issues upon which the director can condition or deny issuance of a permit, the director shall provide such a hearing. The hearing does not have to be provided pursuant to the administrative provisions for contested cases as provided in article five, chapter twenty-nine-a of this code. The secretary shall promulgate a procedural rule for the hearing pursuant to this provision. Appeals shall be pursuant to article five, chapter twenty-nine-a of this code.
               The director may cause such inspections to be made of the proposed well work location as to assure adequate review of the application. The permit shall not be issued, or shall be conditioned including conditions with respect to the location of the well and access roads prior to issuance if the director determines that:
               (1) The proposed well work will constitute a hazard to the safety of persons; or
               (2) The plan for soil erosion and sediment control is not adequate or effective; or
               (3) Damage would occur to publicly owned lands or resources; or
               (4) The proposed well work fails to protect fresh water sources or supplies.
               The director shall promptly review all comments filed. If after review of the application and all comments received, and after holding any hearing requested pursuant to this section by persons entitled to a notice pursuant to subsections (a) and (b) of section nineteen of this article, the application for a well work permit is approved, and no timely objection or comment has been filed with the director or made by the director under the provisions of section fifteen, sixteen or seventeen of this article, the permit shall be issued, with conditions, if any. Nothing in this section shall be construed to supersede the provisions of sections six, twelve, thirteen, fourteen, fifteen, sixteen and seventeen of this article.
               The director shall mail a copy of the permit as issued or a copy of the order denying a permit to any person who submitted comments to the director concerning said permit and requested such copy.
               Upon the issuance of any permit pursuant to the provisions of this article, the director shall transmit a copy of such permit to the office of the assessor for the county in which the well is located.
ARTICLE 6A. NATURAL GAS HORIZONTAL WELL CONTROL ACT.

§22-6A-8. Review of application; issuance of permit; performance standards; copy of permits to county assessor.

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



     NOTE: The purpose of this bill is to require the Department of Environmental Protection to issue a procedural rule to allow surface owners a right to a hearing and appeal of a decision of the department to issue, condition or deny a permit for certain well work on the surface owner's land pursuant to the Supreme Court opinion in Martin v. Hamblet, No. 11-1157 (W.Va., 2012) to re- examine these procedures.

     Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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