WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTIETH LEGISLATURE

FOURTH EXTRAORDINARY SESSION, 2011

FIRST DAY

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Charleston, W. Va., Sunday, December 11, 2011

     Pursuant to the proclamation of His Excellency, the Governor, the Honorable Earl Ray Tomblin, dated the tenth day of December, two thousand eleven, convening the eightieth Legislature of West Virginia in extraordinary session today (Sunday, December 11, 2011), under the provisions of section seven, article seven of the Constitution of West Virginia, the Senate assembled in its chamber in the state capitol in the City of Charleston at 5 o'clock p.m., and was called to order by its President, the Honorable Jeffrey V. Kessler.
     Prayer was offered by the Honorable Mike Hall, a senator from the fourth district.
     On the call of the roll, the following answered to their names:
     Senators Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President).
     Thirty-two members having answered to their names, the President declared the presence of a quorum.
Executive Communications

     Senator Kessler (Mr. President) laid before the Senate the following proclamation from His Excellency, the Governor, convening the Legislature in extraordinary session, which was read by the Clerk:
STATE OF WEST VIRGINIA

EXECUTIVE DEPARTMENT

CHARLESTON

A P R O C L A M A T I O N

By the Governor

     I, EARL RAY TOMBLIN, by virtue of the authority vested in me as Governor by Section 7, Article VII of the Constitution of West Virginia, do hereby call the Legislature of West Virginia to convene in Extraordinary Session at five o'clock p.m., on the eleventh day of December, two thousand eleven, in its chambers in the State Capitol, City of Charleston, for the sole purpose of considering and acting upon the following matters:
     FIRST: Legislation requiring West Virginia Workforce Investment Council to complete certain reviews and report to Legislature; relating to certain definitions; providing for powers of the Secretary of the Department of Environmental Protection ("Secretary") with respect to oil and gas matters; authorizing the Secretary to hire oil and gas inspectors, and require inspections; providing for examination, qualifications, and salaries for inspectors; creating the Natural Gas Horizontal Well Act and applying it prospectively; establishing standards and rules for drilling into karst terrain; applying certain provisions of article six, chapter twenty-two of the Code of West Virginia to horizontal wells; providing that the Secretary shall regulate permitting, location, spacing, drilling, fracturing, stimulation, well completion activities, operation, other drilling and production processes, plugging and reclamation of horizontal wells; requiring well work permit for horizontal wells and establishing criteria and contents of application; providing for permit application review; establishing bonding requirements for horizontal wells; establishing permit fee not to exceed $10,000 for the initial horizontal well drilled at a location and $5,000 for each additional horizontal well drilled on a single pad at the same location; providing for emergency permits; requiring the Secretary to propose legislative rules for testing of water flow and quality of certain water wells; providing for performance standards for horizontal well permits; requiring horizontal well operators who withdraw certain amounts of water to follow additional permitting requirements; requiring application, fees and certificate of approval and inspection for large pits and impoundments; requiring operators to provide notice to certain surface owners, coal owners, natural gas storage field operators and water purveyors in certain instances; establishing procedure for considering objections and protests of coal operators and coal seam owners and considering written comments filed by certain surface owners, natural gas storage field operators and water purveyors; establishing well location restrictions with respect to existing water wells, developed springs, perennial streams, lakes, ponds, reservoirs, wetlands and trout streams, occupied dwelling structures and other certain buildings; requiring the Secretary to promulgate legislative rules for plugging of horizontal wells; providing reclamation requirements for horizontal wells; providing for one- time reimbursement of certain surface owners for certain amounts of property taxes not to exceed $2,500; creating a rebuttable presumption in civil actions for contamination or deprivation of fresh water sources or supplies; establishing civil offenses and penalties; establishing a public website and electronic notification registry for horizontal well permit applications; requiring the Secretary to conduct certain studies and to report findings to the Legislature; authorizing the Secretary to propose legislative rules pertaining to air quality and impoundment and pit safety; establishing casing and cementing standards and authorizing the Secretary to grant waivers, exceptions and revisions to such standards; creating the Oil and Gas Horizontal Well Production Damage Compensation Act; establishing compensation for horizontal well production damage to surface owners, including lost income or expenses related to surface occupied by the operator, market value of crops or timber damaged, damage to water supply, damage to personal property and diminution in value of surface lands according to the market value of the actual use made thereof prior to commencement of the permitted activity, and providing that each party shall pay its own fees and costs.
     SECOND: Certain ceremonial and memorial resolutions.
     THIRD: Legislation authorizing and appropriating the expenditure of public moneys to pay the expenses of this extraordinary session.
     IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of West Virginia to be affixed.
DONE at the Capitol in the City of Charleston, State of West Virginia, this the tenth day of December, in the year of our Lord, Two Thousand Eleven, and in the One Hundred Forty-Ninth year of the State.
EARL RAY TOMBLIN,
Governor.
By the Governor:
  NATALIE E. TENNANT,
     Secretary of State.
     Senator Unger offered the following resolution:
     Senate Resolution No. 401--Raising a committee to inform the House of Delegates the Senate has assembled in extraordinary session.
     Resolved by the Senate:
     That a committee of three be appointed by the President to inform the House of Delegates that the Senate has assembled in extraordinary session, with a quorum present, and is ready to proceed with the business for which the extraordinary session was called by His Excellency, the Governor.
     At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     Whereupon, the President appointed as members of such committee the following:
     Senators Laird, Klempa and Nohe.
     Subsequently, Senator Laird, from the committee to notify the House of Delegates the Senate has assembled in extraordinary session, and is ready to proceed with the business of the session, announced that the committee had discharged its duties.
     A message from the House of Delegates, by
     Delegates Fragale, M. Poling and Evans, announced that the House of Delegates has assembled in extraordinary session, with a quorum present, and is ready to proceed with the business stated in the proclamation convening the Legislature.
     Senator Unger then offered the following resolution:
     Senate Resolution No. 402--Raising a committee to wait upon the Governor.
     Resolved by the Senate:
     That a committee of three on the part of the Senate, to join with a similar committee on the part of the House of Delegates, be appointed by the President to notify His Excellency, the Governor, that at his call the Legislature has assembled in extraordinary session, with a quorum of each house present; and is ready to receive any communication or message he may be pleased to present under section seven, article seven of the Constitution of West Virginia, which provides that no business except that stated in his proclamation be considered.
     At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     Whereupon, the President appointed as members of such committee the following:
     Senators Miller, Yost and Boley.
     A message from the House of Delegates, by
     Delegates Staggers, Walker and Border, announced that the Speaker had appointed them a committee of three to join with a similar committee on the part of the Senate to wait upon the Governor, under the provisions of Senate Resolution No. 402. Senate and House members of this select committee then proceeded to the executive offices.
     Subsequently, Senator Miller reported that the joint Senate and House committee had performed the duty assigned to it.
     Senator Kessler (Mr. President) announced the replacement of Senator McCabe on the Committee on the Judiciary with Senator Kirkendoll.
     The Senate proceeded to the third order of business.
Executive Communications

     Senator Kessler (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, consisting of executive nominations for appointees:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

December 11, 2011

Senate Executive Message No. 1
TO:  The Honorable Members of the
     West Virginia Senate
Ladies and Gentlemen:
     I respectfully submit the following nominations for your advice and consent:
     1. For Member, West Virginia School of Osteopathic Medicine Board of Governors, Dave Rader, Charleston, Kanawha County, for the term ending June 30, 2015.
     2. For Member, Environmental Quality Board, Dr. Charles Somerville, Huntington, Cabell County, for the term ending June 30, 2014.
     3. For Member, Environmental Quality Board, Bascombe Blake, Jr., Morgantown, Monongalia County, for the term ending June 30, 2013.
     Notice of these appointments was previously provided to the appropriate legislative staff at the time the appointments were made.
                              Sincerely,
                               Earl Ray Tomblin,
                               Governor.
     Which communication was received and referred to the Committee on Confirmations.
     On motion of Senator Edgell, consideration of the nominations immediately hereinbefore reported was made a special order of business for tomorrow, Monday, December 12, 2011, at 11 a.m.
     The Senate proceeded to the sixth order of business.
     On motions for leave, severally made, the following bill was introduced, read by its title, and referred to the appropriate committees:
     By Senators Kessler (Mr. President) and Hall (By Request of the Executive):
     
Senate Bill No. 4001--A Bill to repeal §22C-7-1, §22C-7-2 and §22C-7-3 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §5B-2B-4a; to amend and reenact §22-6-1 and §22-6-2 of said code; to amend said code by adding thereto a new section, designated §22-6-2a; to amend said code by adding thereto a new article, designated §22-6A-1, §22-6A-2, §22-6A-3, §22-6A-3a, §22-6A-4, §22-6A-5, §22-6A-6, §22- 6A-7, §22-6A-8, §22-6A-9, §22-6A-10, §22-6A-11, §22-6A-12, §22-6A- 13, §22-6A-14, §22-6A-15, §22-6A-16, §22-6A-17, §22-6A-18, §22-6A- 19, §22-6A-20, §22-6A-21, §22-6A-22, §22-6A-23 and §22-6A-24; to amend said code by adding thereto a new article, designated §22-6B- 1, §22-6B-2, §22-6B-3, §22-6B-4, §22-6B-5, §22-6B-6, §22-6B-7 and §22-6B-8; to amend and reenact §22C-8-2 of said code; and to amend and reenact §22C-9-2 of said code, all relating generally to oil and gas wells; requiring West Virginia Workforce Investment Council to complete certain reviews and provide report to Legislature; expanding powers of Secretary of the Department of Environmental Protection; authorizing secretary to determine number of oil and gas inspectors and supervisors and to make investigations or inspections to ensure compliance with applicable law; providing for inspector qualifications, duties and minimum salaries; creating Natural Gas Horizontal Well Control Act; providing short title; making legislative findings and declarations of public policy; providing for applicability of act and exceptions; providing special considerations and rule making for karst formations; defining terms; making horizontal wells subject to certain provisions in article six, chapter twenty-two of the Code of West Virginia; specifying powers and duties of secretary, including certain rule-making power and reporting duties; requiring permit for horizontal wells; establishing permit application requirements and contents; requiring bond and permit fees; providing for issuance of emergency permits; providing for denial, suspension and reinstatement of permits in certain circumstances; providing for application review, requirements for issuance of permit and permit requirements; establishing performance standards; providing for copies of permits to be furnished to county assessors; requiring certificate of approval for large pits or impoundment construction; requiring application for certificate; establishing application requirements and payment of fees; providing for modification, revocation or suspension of certificate and hearing procedure, including an administrative appeals process; providing exceptions for certain farm ponds; authorizing secretary to propose legislative rules governing large pits and impoundment; providing notice to certain property owners of certain applications, intent to enter property or conduct seismic activity; establishing procedure for filing written comments; establishing well location restrictions; requiring promulgation of legislative rules for plugging and abandonment of horizontal wells; establishing reclamation requirements; requiring performance bonds or other security; providing notice of planned operation and contents of notice to certain surface owners; providing notice to certain surface owner and offer for compensation for certain damages to certain surface owner; providing for reimbursement of property taxes to surface owner; providing for civil action, rebuttable presumption and relief for water contamination or deprivation; establishing water rights and replacement procedure; establishing civil penalties and offenses; requiring gas operations to submit certification from Division of Highways that operator has entered into road maintenance agreement pursuant to Division of Highways Oil and Gas Road Policy; creating public website and electronic notification registry of horizontal well permit applications and public notice of website; providing for air quality study, report to Legislature and rulemaking; requiring secretary to report to Legislature regarding safety of pits and impoundments; providing casing and cement standards; authorizing secretary to promulgate legislative and emergency rules relating to casing and cement standards; authorizing secretary to promulgate legislative rules governing pits and impoundments; providing secretary authority to establish, revise and grant waivers regarding casing and cement standards and programs; creating the Oil and Gas Horizontal Well Production Damage Compensation Act; providing legislative findings and purpose; defining terms; providing conditions and parameters for compensation of surface owners for drilling operations; preserving common law right of action and providing offset for compensation or damages paid; requiring notice of claims by surface owners; providing manner in which oil and gas operator must provide notice of reclamation; providing for offers of settlement; providing procedures for civil actions, arbitration and fees; preserving alternate remedies; and modifying definitions of shallow wells and deep wells.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     The Senate proceeded to the twelfth order of business.
     Remarks were made by Senators Wells and Snyder.
     Thereafter, at the request of Senator Palumbo, and by unanimous consent, the remarks by Senator Wells were ordered printed in the Appendix to the Journal.
     Pending announcement of a meeting of a standing committee of the Senate, including majority and minority party caucuses,
     On motion of Senator Unger, the Senate adjourned until tomorrow, Monday, December 12, 2011, at 11 a.m.
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