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Introduced Version House Bill 3042 History

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H. B. 3042

 

         (By Delegates Walters, Manypenny, Caputo,

Barker and Manchin)

 

         [Introduced January 11

ole.gif

, 2012; referred to the

         Committee on the Judiciary then Finance.]

 

 

A BILL to repeal §22-6-41 of the Code of West Virginia, 1931, as amended; to repeal §22C-7-1, §22C-7-2 and §22C-7-3 of said code; to amend and reenact §22-6-1, §22-6-2, §22-6-3, §22-6-4, §22-6-5, §22-6-6, §22-6-7, §22-6-8, §22-6-9, §22-6-10, §22-6-11, §22-6-12, §22-6-13, §22-6-14, §22-6-15, §22-6-16, §22-6-17, §22-6-18, §22-6-19, §22-6-20, §22-6-21, §22-6-22, §22-6-23, §22-6-24, §22-6-25, §22-6-26, §22-6-27, §22-6-28, §22-6-29, §22-6-30, §22-6-31, §22-6-32, §22-6-33, §22-6-34, §22-6-35, §22-6-36, §22-6-37, §22-6-38, §22-6-39 and §22-6-40 of said code; to amend and reenact §22-7-3 of said code; to amend and reenact §22C-8-2 and §22C-8-4 of said code; to amend and reenact §22C-9-1, §22C-9-2, §22C-9-3 and §22C-9-4 of said code; and to amend said code by adding thereto a new section, designated §22C-9-7a, all relating to the regulation of oil and gas wells; oil and gas production damage compensation; the shallow gas well review board; the conservation commission; the pooling of gas from horizontal shallow wells; and increasing civil penalties.

Be it enacted by the Legislature of West Virginia:

     That §22-6-41 of the Code of West Virginia, 1931, as amended, be repealed; that §22C-7-1, §22C-7-2 and §22C-7-3 of said code be repealed; that §22-6-1, §22-6-2, §22-6-3, §22-6-4, §22-6-5, §22-6-6, §22-6-7, §22-6-8, §22-6-9, §22-6-10, §22-6-11, §22-6-12, §22-6-13, §22-6-14, §22-6-15, §22-6-16, §22-6-17, §22-6-18, §22-6-19, §22-6-20, §22-6-21, §22-6-22, §22-6-23, §22-6-24, §22-6-25, §22-6-26, §22-6-27, §22-6-28, §22-6-29, §22-6-30, §22-6-31, §22-6-32, §22-6-33, §22-6-34, §22-6-35, §22-6-36, §22-6-37, §22-6-38, §22-6-39 and §22-6-40 of said code be amended and reenacted; that §22-7-3 of said code be amended and reenacted; that §22C-8-2 and §22C-8-4 of said code be amended and reenacted; that §22C-9-1, §22C-9-2, §22C-9-3 and §22C-9-4 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §22C-9-7a, all to read as follows:

CHAPTER 22. ENVIRONMENTAL RESOURCES.

ARTICLE 6. OFFICE DIVISION OF OIL AND GAS; OIL AND GAS WELLS; ADMINISTRATION; ENFORCEMENT.

§22-6-1. Definitions.

    Unless the context in which used clearly requires a different meaning, as used in this article:

    (a) “Administratively complete application” means an application for permit approval that the secretary determines to contain information addressing each application requirement of the regulatory program and to contain all information necessary to initiate processing and review;

    (b) “Assessment officer” means an employee of the department, other than an oil and gas inspector supervisor, inspector or inspector-in-training, appointed by the secretary to issue proposed penalty assessments and to conduct informal conferences to review notices, orders, and proposed penalty assessments;

    (c) “Best management practice” means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices that will prevent or reduce pollution of waters of the state and include treatment requirements, operating procedures, and practices to control site runoff, spillage or leaks, sludge or waste disposal or drainage from raw material storage;

    (a) (d) “Casing” means a string or strings of pipe commonly placed in wells drilled for natural gas or petroleum or both;

    (b) (e) “Cement” means hydraulic cement properly mixed with water;

    (c) (f) “Chair” means the chair of the West Virginia Shallow Gas Well Review Board as provided for in section four, article eight, chapter twenty-two-c of this code;

    (d) (g) “Coal operator” means any person or persons, firm, partnership, partnership association or corporation that proposes to or does operate a coal mine;

    (e) (h) “Coal seam” and “workable coal bed” are interchangeable terms and mean any seam of coal twenty inches or more in thickness, unless a seam of less thickness is being commercially worked, or can in the judgment of the department foreseeably be commercially worked and will require protection if wells are drilled through it;

    (f) “Director” means the director of the Division of Environmental Protection as established in article one of this chapter or such other person to whom the director has delegated authority or duties pursuant to sections six or eight, article one of this chapter;

    (g) (i) “Deep well” means any well other than a shallow well or coalbed methane well, drilled and completed in to a formation at or below the top of the uppermost member of the “Onondaga Group;”

    (h) (j) “Expanding cement” means any cement approved by the office division of oil and gas which expands during the hardening process, including, but not limited to, regular oil field cements with the proper additives;

    (i) (k) “Facility” means any facility utilized in the oil and gas industry in this state and specifically named or referred to in this article or in article eight, or nine, ten or twenty-one of this chapter, other than a well or well site;

    (j) (l) “Gas” means all natural gas and all other fluid hydrocarbons not defined as oil in this section;

    (m) “Impoundment” means a man-made excavation or diked area for the retention of fresh water and into which no wastes of any kind are placed;

    (n) “Modification” means any change to the permit or permit application that would require renotice to any party originally receiving notice as part of the permit application or any changes to the plat or casing program, whether or not such changes would require renotice;

    (o) “Occupied dwelling” means any building that is currently being used on a regular or periodic basis for human habitation;

    (k) (p) “Oil” means natural crude oil or petroleum and other hydrocarbons, regardless of gravity, which are produced at the well in liquid form by ordinary production methods and which are not the result of condensation of gas after it leaves the underground reservoirs;

    (l) (q) “Owner” when used with reference to any well, shall include any person or persons, firm, partnership, partnership association or corporation that owns, manages, operates, controls or possesses such well as principal, or as lessee or contractor, employee or agent of such principal;

    (m) (r) “Owner” when used with reference to any coal seam, shall include any person or persons who own, lease or operate such coal seam;

    (n) (s) “Person” means any natural person, corporation, firm, partnership, partnership association, venture, receiver, trustee, executor, administrator, guardian, fiduciary or other representative of any kind, and includes any government or any political subdivision or any agency thereof;

    (t) “Pit” means a man-made excavation or diked area that contains or is intended to contain an accumulation of process waste fluids, drill cuttings or any other liquid substance that could impact surface or groundwater;

    (u) “Pollutant” shall have the same meaning as provided in subsection (17), section three, article eleven, chapter twenty-two of this code;

    (o) (v) “Plat” means a map, drawing or print showing the location of a well or wells as herein defined;

    (w) “Replacement of water supply” means, with respect to water supplies, contaminated, diminished or interrupted provision of water supply on both a temporary and permanent basis of at least equivalent quality and quantity. Replacement includes provision of an equivalent water delivery system and payment of operation and maintenance cost in excess of customary and reasonable delivery cost for the replaced water supplies. Upon agreement by the operator and the water supply owner, the obligation to pay the costs may be satisfied by a one-time payment in an amount which covers the present annual operation and maintenance costs for a period agreed to by the operator and the water supply owner;

    (p) (x) “Review board” means the West Virginia Shallow Gas Well Review Board as provided for in section four, article eight, chapter twenty-two-c of this code;

    (q) (y) “Safe mining through of a well” means the mining of coal in a workable coal bed up to a well which penetrates such workable coal bed and through such well so that the casing or plug in the well bore where the well penetrates the workable coal bed is severed;

    (z) “Secretary” means the Cabinet Secretary of the Department of Environmental Protection as established in article one of this chapter or such other person to whom the secretary has delegated authority or duties pursuant to sections six or eight, article one of this chapter;

    (aa) “Shallow well” means any gas well, other than a coalbed methane well, drilled no deeper than one hundred feet below the top of the “Onondaga Group”: and completed in a formation above the top of the uppermost member of the “Onondaga Group”: Provided, That in drilling a shallow well the operator may penetrate into the “Onondaga Group” to a reasonable depth, not in excess of twenty feet, in order to allow for logging and completion operations, but in no event may the “Onondaga Group” formation or any formation below the “Onondaga Group” be otherwise produced, perforated or stimulated in any manner;

    (bb) “Significant, imminent environmental harm to land, air or water resources” means the existence of any condition or practice or any violation of a permit or other requirement of this article, which condition, practice of violation could reasonably be expected to cause significant and imminent environmental harm to land, air or water resources. The term “environmental harm” means any material adverse impact on land, air or water resources, including but not limited to plant, wildlife and fish, and the environmental harm is imminent if a condition or practice exists that is causing the harm or may reasonably be expected to cause the harm at any time before the end of the abatement time set by the secretary. An environmental harm is “significant” if that harm is material and not immediately repairable;

    (cc) “Stimulate” means any action taken by a well operator to increase the inherent productivity of an oil or gas well, including, but not limited to, fracturing, shooting or acidizing, but excluding cleaning out, bailing or work over operations;

    (dd) “Waste” means: (i) Physical waste, as the term is generally understood in the oil and gas industry; (ii) the locating, drilling, equipping, operating or producing of any oil or gas well in a manner that causes, or tends to cause a substantial reduction in the quantity of oil and gas ultimately 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 oil or gas; or (iii) the drilling of more deep wells than are reasonably required to recover efficiently and economically the maximum amount of oil and gas from a pool; (iv) substantially inefficient, excessive or improper use, or the substantially unnecessary dissipation of, reservoir energy, it being understood that nothing in this chapter shall be construed to authorize any agency of the state to impose mandatory spacing of shallow wells except for the provisions of section eight, article nine, chapter twenty-two-c of this code and the provisions of article eight, chapter twenty-two-c of this code; (v) inefficient storing of oil or gas: Provided, That storage in accordance with a certificate of public convenience issued by the Federal Energy Regulatory Commission shall be conclusively presumed to be efficient; and (vi) other underground or surface waste in the production or storage of oil, gas or condensate, however caused. Waste does not include gas vented or released from any mine areas as defined in section two, article one, chapter twenty-two-a of this code or from adjacent coal seams which are the subject of a current permit issued under article two of chapter twenty-two-a of this code: Provided, however, That nothing in this exclusion is intended to address ownership of the gas;

    (ee) “Waters of this state: Shall have the same meaning as the term “waters” as provided in subsection (23), section three, article eleven, chapter twenty-two of this code;

    (ff) “Well” means any shaft or hole sunk, drilled, bored or dug into the earth or into underground strata for the extraction or injection or placement of any liquid or gas, or any shaft or hole sunk or used in conjunction with such extraction or injection or placement. The term “well” does not include any shaft or hole sunk, drilled, bored or dug into the earth for the sole purpose of core drilling or pumping or extracting therefrom potable, fresh or usable water for household, domestic, industrial, agricultural or public use;

    (gg) “Well work” means the drilling, redrilling, deepening, stimulating, pressuring by injection of any fluid, converting from one type of well to another, combining or physically changing to allow the migration of fluid from one formation to another or plugging or replugging of any well; and

    (hh) “Well operator” or “operator” means any person or persons, firm, partnership, partnership association or corporation that proposes to or does locate, drill, operate or abandon any well as herein defined.

    (x) “Pollutant shall have the same meaning as provided in subsection (17), section three, article eleven, chapter twenty-two of this code; and

    (y) “Waters of this state” shall have the same meaning as the term “waters” as provided in subsection (23), section three, article eleven, chapter twenty-two of this code.

§22-6-2. Secretary -- Powers and duties generally; department records open to public; inspectors.

    (a) The secretary shall have as his or her duty the supervision of the execution and enforcement of matters related to oil and gas set out in this article and in articles eight, and nine, ten, and twenty-one of this chapter.

    (b) The secretary is authorized to propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary to effectuate the above stated purposes.

    (c) The secretary shall have full charge of the oil and gas matters set out in this article and in articles eight, and nine, ten, and twenty-one of this chapter. In addition to all other powers and duties conferred upon him or her, the secretary shall have the power and duty to:

    (1) Supervise and direct the activities of the office division of oil and gas and see that the purposes set forth in subsections (a) and (b) of this section are carried out;

    (2) Employ a supervising oil and gas inspector and oil and gas inspectors Determine the number of supervising oil and gas inspectors and oil and gas inspectors needed to carry out the purposes of this article and articles eight, nine, ten, and twenty-one of this chapter and appoint them as such. All appointees shall be qualified civil service employees, but no person is eligible for appointment until he or she has served in a probationary status for a period of six months to the satisfaction of the secretary;

    (3) Supervise and direct such oil and gas inspectors and supervising inspectors in the performance of their duties;

    (4) Suspend for good cause any oil and gas inspector or supervising inspector without compensation for a period not exceeding thirty days in any calendar year Make investigations or inspections necessary to ensure complete compliance with the provisions of this code and enforce the provisions of this article and articles eight, nine, ten, and twenty-one of this chapter;

    (5) Prepare report forms to be used by oil and gas inspectors or the supervising inspectors in making their findings, orders and notices, upon inspections made in accordance with this article and articles seven, eight, nine, and ten, and twenty-one of this chapter;

    (6) Employ a hearing officer and such clerks, stenographers, and other employees as may be necessary to carry out his or her their duties and the purposes of the office division of oil and gas and fix their compensation;

    (7) Hear and determine applications made by owners, well operators, and or coal operators for the annulment or revision of orders made by oil and gas inspectors or the supervising inspectors; and to make inspections, in accordance with the provisions of this article and articles eight and nine of this chapter;

    (8) Cause a properly indexed permanent and public record to be kept of all inspections made by the secretary or by oil and gas inspectors or the supervising inspectors;

    (9) Conduct such research and studies as the secretary shall deems necessary to aid in protecting the health and safety of persons employed within or at potential or existing oil or gas production fields within this state, to improve drilling and production methods, and to provide for the more efficient protection and preservation of oil and gas-bearing rock strata and property used in connection therewith;

    (10) Collect a permit fee of four hundred dollars $400 for each permit application filed other than an application for a deep well or a coalbed methane well or a well that is drilled horizontally; and collect a permit fee of six hundred fifty dollars $650 for each permit application filed for a deep well; and collect a permit fee of $10,000 for each permit application filed for a well that is drilled horizontally: Provided, That no permit application fee shall be required when an application is submitted solely for the plugging or replugging of a well, or to modify an existing application or permit for which the operator previously has submitted a permit fee under this section. All application fees required hereunder shall be in lieu of and not in addition to any fees imposed under article eleven of this chapter relating to discharges of stormwater but shall be in addition to any other fees required by the provisions of this article; Provided, however, That upon a final determination by the United States Environmental Protection Agency regarding the scope of the exemption under section 402(l)(2) of the federal Clean Water Act (33 U.S.C. 1342(l)(2)), which determination requires a “national pollutant discharge elimination system” permit for stormwater discharges from the oil and gas operations described therein, any permit fees for stormwater permits required under article eleven of this chapter for such these operations shall not exceed $100.

    (11) Perform all other duties which are expressly imposed upon the secretary by the provisions of this chapter;

    (12) Perform all duties as the permit issuing authority for the state in all matters pertaining to the exploration, development, production, storage, and recovery of this state's oil and gas;

    (13) Adopt rules with respect to the issuance, denial, retention, suspension or revocation of permits, authorizations, and requirements of this chapter, which rules shall assure that the rules, permits, and authorizations issued by the secretary are adequate to satisfy the purposes of this article and articles seven, eight, nine, and ten, and twenty-one of this chapter, particularly with respect to the consolidation of the various state and federal programs which place permitting requirements on the exploration, development, production, storage, and recovery of this state's oil and gas Provided, That notwithstanding any provisions of this article and articles seven, eight, nine and ten of this chapter to the contrary, the environmental quality board shall have the sole authority pursuant to section three, article three, chapter twenty-two-b to promulgate rules setting standards of water quality applicable to waters of the state; and

    (14) Perform such acts as may be necessary or appropriate to secure to this state the benefits of federal legislation establishing programs relating to the exploration, development, production, storage, and recovery of this state's oil and gas, which programs are assumable by the state.

    (d) The Secretary shall have authority to visit and inspect any well or well site and any other oil or gas facility in this state and may call for the assistance of any oil and gas inspector or inspectors or supervising inspector whenever such assistance is necessary in the inspection of any such well or well site or any other oil or gas facility. Similarly, all All oil and gas inspectors and the supervising inspectors shall have authority are authorized to visit and inspect any well or well site and any other oil or gas facility in this state. They shall make all necessary surveys and inspections of oil and gas operations required by this article and articles eight, nine, ten, and twenty-one of this chapter; administer and enforce all oil and gas laws and rules; and perform other duties and services as may be prescribed by the secretary. Inspectors shall give particular attention to all conditions of each permit to ensure complete compliance therewith. They shall note and describe all violations of this article and articles eight, nine, ten, or twenty-one of this chapter and immediately report those violations to the secretary in writing, furnishing at the same time a copy of the report to the operator concerned. Any well operator, 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 beneath said tract of land may request the Secretary to have an immediate inspection made. The operator or owner of every well or well site or any other oil or gas facility shall cooperate with the Secretary, all oil and gas inspectors and the supervising inspector in making inspections or obtaining information.

    (e) Oil and gas inspectors shall devote their full time and undivided attention to the performance of their duties, and they shall be responsible for the inspection of all wells or well sites or other oil or gas facilities in their respective districts as often as may be required in the performance of their duties. Any well operator, coal operator operating coal seams beneath the tract of land, or the coal seam owner or lessee, if any, if the owner or lessee is not yet operating the coal seams beneath the tract of land, may request the secretary to make an immediate inspection. The operator or owner of every well or well site or any other oil or gas facility shall cooperate with the secretary, all oil and gas inspectors, and supervising inspectors in making inspections or obtaining information.

    (f) All records of the office shall be open to the public.

§22-6-3. 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.

    (a) If an oil and gas inspector, upon making an inspection of a well or well site or any other oil or gas facility, finds that any provision of this article is being violated, the inspector shall also find whether or not an imminent danger to persons exists, or whether or not there exists an imminent danger that a fresh water source or supply will be contaminated or lost. If the inspector finds that such imminent danger exists, an order requiring the operator of such well or well site or other oil or gas facility to cease further operations until such imminent danger has been abated shall be issued by the inspector. If the inspector finds that no such imminent danger exists, the inspector shall determine what would be a reasonable period of time within which such violation should be totally abated. Such findings shall contain reference to the provisions of this article which the inspector finds are being violated, and a detailed description of the conditions which cause and constitute such violation.

    (b) The period of time so found by such oil and gas inspector to be a reasonable period of time shall not exceed seven days. Such period may be extended by such inspector, or by any other oil and gas inspector duly authorized by the director, from time to time, for good cause, but not to exceed a total of thirty days, upon the making of a special inspection to ascertain whether or not such violation has been totally abated: Provided, That such thirty-day period may be extended beyond thirty days by such inspectors where abatement is shown to be incapable of accomplishment because of circumstances or conditions beyond the control of the well operator. The director shall cause a special inspection to be made: (A) Whenever an operator of a well or well site or any other oil or gas facility, prior to the expiration of any such period of time, requests the director to cause a special inspection to be made at such well or well site or any other oil or gas facility; and (B) upon expiration of such period of time as originally fixed or as extended, unless the director is satisfied that the violation has been abated. Upon making such special inspection, such oil and gas inspector shall determine whether or not such violation has been totally abated. If the inspector determines that such violation has not been totally abated, the inspector shall determine whether or not such period of time as originally fixed, or as so fixed and extended, should be extended. If the inspector determines that such period of time should be extended, the inspector shall determine what a reasonable extension would be. If the inspector determines that such violation has not been totally abated, and if such period of time as originally fixed, or as so fixed and extended, has then expired, and if the inspector also determines that such period of time should not be further extended, the inspector shall thereupon make an order requiring the operator of such well or well site or other oil or gas facility to cease further operations of such well, well site or facility, as the case may be. Such findings and order shall contain reference to the specific provisions of this article which are being violated.

    (c) Notice of each finding and order made under this section shall promptly be given to the operator of the well or well site or other oil or gas facility to which it pertains by the person making such finding or order.

    (d) No order shall be issued under the authority of this section which is not expressly authorized herein.

§22-6-3. Permit required for well work; permit fee; application; soil erosion control plan.

    (a) It is unlawful for any person to commence any well work, including site preparation work which involves any disturbance of land, without first securing from the secretary a well work permit. An application may propose and a permit may approve two or more activities defined as well work, though a separate permit must be obtained for each well drilled.

    (b) The application for a well work permit shall be accompanied by the applicable bond as prescribed by section twelve, fourteen or twenty-three of this article, and the applicable plat required by section twelve or fourteen of this article.

    (c) Every permit application filed under this section shall be on the form prescribed by the secretary, shall be verified, and shall contain the following:

    (1) The names and addresses of (A) The permit applicant; (B) The owner of record of the property, to include surface, mineral, and storage rights, proposed to be developed; (C) The holders of record of any leasehold interest in the property; (D) The agent required to be designated by subsection (e) of this section; (E) If the applicant is a business entity other than a sole proprietor, the names and business addresses of the principals, officers, and resident agent; and (F) Every person whom the applicant must notify under any section of this article, together with a certification and evidence that a copy of the application and all other required documentation has been delivered to all those persons;

    (2) The name and address of every coal operator operating coal seams under the tract of land on which the well is or may be located, and the coal seam owner of record and lessee of record required to be given notice by sections twelve and fourteen, if any, if the owner or lessee is not yet operating said coal seams;

    (3) The number of the well or other identification as the secretary may require;

    (4) The type of well;

    (5) The well work for which a permit is requested;

    (6) The approximate depth to which the well is to be drilled or deepened, or the actual depth if the well has been drilled;

    (7) Each formation in which the well will be completed if applicable;

    (8) Any permit application fee required by law;

    (9) If the proposed well work will require casing or tubing to be set, the entire casing program for the well, including the size of each string of pipe, the starting point and depth to which each string is to be set, and the extent to which each such string is to be cemented;

    (10) If the proposed well work is to convert an oil well or a combination well or to drill a new well for the purpose of introducing pressure for the recovery of oil as provided in section twenty-five of this article, specifications in accordance with the data requirements of section fourteen of this article;

    (11) If the proposed well work is to plug or replug the well,(A) Specifications in accordance with the data requirements of section twenty-three of this article; (B) A copy of all logs in the operator's possession as the secretary may require; and (C) A work order showing in detail the proposed manner of plugging or unplugging the well, in order that a representative of the secretary and any interested persons may be present when the work is done. In the event of an application to drill, redrill or deepen a well, if the well work is unsuccessful so that the well must be plugged and abandoned, and if the well is one on which the well work has been continuously progressing pursuant to a permit, the operator may proceed to plug the well as soon as the operator has obtained the verbal permission of the secretary or the secretary’s designated representative to plug and abandon the well, except that the operator shall make reasonable effort to notify as soon as practicable the surface owner and the coal owner, if any, of the land at the well location, and shall also timely file the plugging affidavit required by section twenty-three of this article;

    (12) If the proposed well work is to stimulate an oil or gas well, specifications in accordance with the data requirements of section thirteen of this article;

    (13) The erosion and sediment control plan required by subsection (d) of this section for applications for permits to drill;

    (14) A well site safety plan to address proper safety measures to be employed for the protection of persons on the site as well as the general public. The plan shall encompass all aspects of the operation, including the actual well work for which the permit was obtained, completion activities, and production activities;

    (15) A statement of whether the applicant or any officer, partner, director, principal shareholder of the applicant, any subsidiary, affiliate or persons controlled by or under common control with the applicant has ever been an officer, partner, director or principal shareholder in a company that has ever held a well work permit in this or any other state that has been revoked or has had a bond or similar security deposited in lieu of bond forfeited and, if so, a brief explanation of the facts involved; and

    (16) Any other relevant information which the secretary may require.

    (d)(1) An erosion and sediment control plan shall accompany each application for a well work permit, except for a well work permit to plug or replug any well. The erosion and sediment control plan shall contain methods of stabilization and drainage, including a map of the project area indicating the amount of acreage disturbed. The erosion and sediment control plan shall meet the minimum requirements of the West Virginia erosion and sediment control manual as adopted and from time to time amended by the department. The erosion and sediment control plan shall become part of the terms and conditions of any well work permit that is issued, except for a well work permit to plug or replug any well, and the provisions of the plan shall be carried out where applicable in the operation. The erosion and sediment control plan shall set out the proposed method of reclamation which shall comply with the requirements of section thirty of this article. For permits to plug or replug any well, the operator shall submit a reclamation plan in accordance with established best management practices as contained in the Erosion and Sediment Control Manual.

    (2) For well sites that disturb five acres or more of surface, excluding pipelines, gathering lines, and roads, the erosion and sediment control plan shall be certified by a registered professional engineer.

    (e) For well sites that disturb five acres or more of surface, excluding pipelines, gathering lines, and roads, the operator shall submit a site construction plan that shall be certified by a registered professional engineer and contains information that the secretary may require by rule.

    (f) 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 eleven, chapter twenty-two, may be served, and upon whom process may be served. Every well operator required to designate an agent under this section shall, within five days after the termination of the designation, notify the secretary of the termination and designate a new agent.

    (g) The well owner or operator shall install the permit number as issued by the secretary and a contact telephone number for the operator in a legible and permanent manner to the well upon completion of any permitted work. The dimensions, specifications, and manner of installation shall be in accordance with the rules of the secretary.

    (h) In addition to the other requirements of this article, an application for a well work permit for a gas well that is drilled horizontally shall include, in addition to the information listed above, a water management plan, which shall:

    (1) Explain if the drilling, fracturing or stimulating of the horizontal well requires the use of water obtained by withdrawals from waters of the state in amounts that exceed two hundred ten thousand gallons during any month; and

    (2) Include the following information:

    (A) The type of water source, such as surface or groundwater, the county of each source to be used by the operation for water withdrawals, and the latitude and longitude of each anticipated withdrawal location;

    (B) The anticipated volume of each water withdrawal;

    (C) The anticipated months when water withdrawals will be made;

    (D) The planned management and disposition of wastewater from fracturing, stimulation, and production activities;

    (E) A listing of the anticipated additives that may be used for fracturing or stimulating the well. Upon well completion, a listing of the additives that were actually used in the fracturing or stimulating of the well shall be submitted as part of the completion report;

    (F) For all surface water withdrawals, a water resources protection plan that includes the information requested in paragraphs (A) through (E) of this subdivision and includes documentation of measures that will be taken to allow the state to manage the quantity of its waters for present and future use and enjoyment and for the protection of the environment. The plan shall include the following:

    (i) Identification of the current designated and existing water uses, including any public water intakes within one mile downstream of the withdrawal location;

    (ii) For surface waters, a demonstration, using methods acceptable to the secretary, that sufficient in-stream flow will be available immediately downstream of the point of withdrawal. A sufficient in-stream flow is maintained when a pass-by flow that is protective of the identified use of the stream is preserved immediately downstream of the point of withdrawal; and

    (iii) Methods to be used for surface water withdrawals to minimize adverse impact to aquatic life.

    (3) This subsection is intended to be consistent with and does not supersede, revise, repeal or otherwise modify articles eleven, twelve or twenty-six of this chapter and does not revise, repeal or otherwise modify the common law doctrine of riparian rights in West Virginia law.

    (i) The secretary may waive the requirements of this section and sections nine, ten, and eleven of this article in any emergency situation, if the secretary deems that action necessary. In that case the secretary may issue an emergency permit which would be effective for not more than thirty days, but which would be subject to reissuance by the secretary.

    (j) The secretary shall deny the issuance of a permit if the secretary determines that the applicant has committed a substantial violation of a previously issued permit, 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 within the time prescribed by the secretary pursuant to the provisions of sections twenty-eight, twenty-eight-a or thirty-four of this article and the rules promulgated hereunder, which time may not be unreasonable: Provided, That in the event that the secretary does find that a substantial violation has occurred and that the operator has failed to abate or seek review of the violation in the time prescribed, the secretary may suspend the permit on which the violation exists, after which suspension the operator shall forthwith cease all well work being conducted under the permit: Provided, however, That the secretary may reinstate the permit without further notice, at which time the well work may continue. The secretary shall make written findings of the determination and may enforce the same in the circuit courts of this state, and the operator may appeal the suspension pursuant to the provisions of section thirteen of this article. The secretary shall make a written finding of any such determination.

    (k) Any person who violates any provision of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $5,000 or be imprisoned in the county jail not more than twelve months, or both fined and imprisoned.

§22-6-4. Review of findings and orders by director; special inspection; annulment, revision, etc., of order; notice.

    (a) Any well operator, complaining coal operator, owner or lessee, if any, aggrieved by findings or an order made by an oil or gas inspector pursuant to section three of this article, may within fifteen days apply to the director for annulment or revision of such order. Upon receipt of such application the director shall make a special inspection of the well, well site or other oil and gas facility affected by such order, or cause two duly authorized oil and gas inspectors, other than the oil and gas inspector who made such order or the supervising inspector and one duly authorized oil and gas inspector other than the oil and gas inspector who made such order, to make such inspection of such well, or well site or other oil or gas facility and to report thereon to them. Upon making such special inspection, or upon receiving the report of such special inspection, as the case may be, the director shall make an order which shall include the director's findings and shall annul, revise or affirm the order of the oil and gas inspector.

    (b) The director shall cause notice of each finding and order made under this section to be given promptly to the operator of the well, well site or other oil or gas facility to which such findings and order pertain, and the complainant under section three, if any.

    (c) At any time while an order made pursuant to section three of this article is in effect, the operator of the well, well site or other oil or gas facility affected by such order may apply to the director for annulment or revision of such order. The director shall thereupon proceed to act upon such application in the manner provided in this section.

    (d) In view of the urgent need for prompt decision of matters submitted to the director under this article, all actions which the director, or oil and gas inspectors or the supervising inspector are required to take under this article, shall be taken as rapidly as practicable, consistent with adequate consideration of the issues involved.

§22-6-4. Approval, denial or revision of permit.

    (a) Upon the receipt of an administratively complete well work permit application or application for modification of a well work permit, the secretary shall grant, require revision of, or deny the application for a permit within a reasonable time and notify the applicant in writing of the decision. The applicant for a permit or permit modification has the burden of establishing that the application is in compliance with all the requirements of this article and the rules promulgated hereunder.

    (b) No permit or modification of a permit may be approved unless the applicant affirmatively demonstrates and the secretary finds in writing on the basis of the information set forth in the application or from information otherwise available, which shall be documented in the approval and made available to the applicant, that:

    (1) The permit application is accurate and complete and that the applicant has complied with all the requirements of this article and the rules promulgated hereunder; and

    (2) The applicant has demonstrated that erosion and sediment control and reclamation as required by this article can be accomplished pursuant to the erosion and sediment control plan contained in the permit application.

    (c) 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 secretary determines that:

    (1) The proposed well work will constitute a hazard to the safety of persons; or

    (2) Damage would occur to publicly owned lands or resources; or

    (3) The proposed well work fails to protect fresh water sources or supplies.

    (d) Where information available to the department indicates that any operation owned or controlled by the applicant is currently in violation of this article or other environmental laws or rules, the permit may not be issued until the applicant submits proof that the violation has been corrected or is in the process of being corrected to the satisfaction of the secretary or the division or agency that has jurisdiction over the violation, and no permit may be issued to any applicant after a finding by the secretary, after an opportunity for hearing, that the applicant or the operator specified in the application controls or has controlled operations with a demonstrated pattern of willful violations of this article or articles eight, nine, ten, eleven or twenty-one of this chapter, of such nature and duration with such irreparable damage to the environment as to indicate an intent not to comply with the provisions of the environmental laws of the State of West Virginia: Provided, That if the secretary finds that the applicant is or has been affiliated with, or managed or controlled by, or is or has been under the common control of, other than as an employee, a person who has had a well work permit revoked or bond or other security forfeited for failure to comply with any environmental laws of this state, the secretary may not issue a permit to the applicant: Provided, however, That subject to the discretion of the secretary and based upon a petition for reinstatement, a permit may be issued to any applicant if: (1) After the revocation or forfeiture, the operator whose permit has been revoked or bond forfeited has paid into the Oil and Gas Reclamation Fund any additional sum of money determined by the secretary to be adequate to correct the noncompliance issue; (2) the violations which resulted in the revocation or forfeiture have not caused irreparable damage to the environment; and (3) the secretary is satisfied that the petitioner will comply with this article.

    (e) The secretary shall promptly review all comments filed by persons entitled to receive notice of the application. 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 secretary or made by the secretary pursuant to the provisions of sections 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 three or twelve, thirteen, fourteen, fifteen, sixteen or seventeen of this article.

    (f) The secretary shall mail a copy of the permit as issued or a copy of the order denying the permit to any person who submitted comments to the secretary concerning the permit and requested a copy.

    (g) Upon issuance of any permit pursuant to the provisions of this article, the secretary shall transmit a copy of the plat described in section twelve of this article to the office of the assessor for the county in which the well is located.

§22-6-5. Requirements for findings, orders and notices; posting of findings and orders; judicial review of final orders of director.

    (a) All findings and orders made pursuant to section three or four of this article, and all notices required to be given of the making of such findings and orders, shall be in writing. All such findings and orders shall be signed by the person making them, and all such notices shall be signed by the person charged with the duty of giving the notice. All such notices shall contain a copy of the findings and orders referred to therein.

    (b) Notice of any finding or order required by section three or four of this article to be given to an operator shall be given by causing such notice, addressed to the operator of the well, well site or other oil and/or gas facility to which such finding or order pertains, to be delivered to such operator by causing a copy thereof to be sent by registered mail to the permanent address of such operator as filed with the division and by causing a copy thereof to be posted upon the drilling rig or other equipment at the well, well site or other oil and/or gas facility, as the case may be. The requirement of this article that a notice shall be "addressed to the operator of the well, well site or other oil and/or gas facility to which such finding or order pertains," shall not require that the name of the operator for whom it is intended shall be specifically set out in such address. Addressing such notice to "Operator of ___________________," specifying the well, well site or other oil and/or gas facility sufficiently to identify it, shall satisfy such requirement.

    (c) Any well operator, complaining coal operator, owner or lessee, if any, adversely affected by a final order issued by the director under section four of this article shall be entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern such judicial review with like effect as if the provisions of said section four were set forth in extenso in this section.

    (d) The judgment of the circuit court shall be 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.

    (e) Legal counsel and services for the director 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 as well, all without additional compensation. The director, with written approval of the Attorney General, may employ special counsel to represent the director at any such appeal proceedings.

§22-6-5. Certificate of approval required for large impoundment construction; certificate of approval and annual registration fees; application required to obtain certificate; revocation or suspension of certificates.

    (a) The Legislature finds that large impoundments (i.e. an impoundment with a capacity of five thousand barrels or more) not associated with a specific well work permit may constitute a potential hazard to people and property; therefore, large impoundments not permitted under a well work permit must be properly regulated and controlled to protect the health, safety and welfare of people and property in this state. It is the intent of the Legislature by this section to provide for the regulation and supervision of large impoundments not associated with a well work permit in this state to the extent necessary to protect the public health, safety and welfare. The Legislature has ordained this article to fulfill its responsibilities to the people of this state and to protect their lives and private and public property from the danger of a potential or actual failure of a large impoundment not associated with a well work permit. This section shall not apply to large impoundments associated with a well work permit.

    (b) It is unlawful for any person to place, construct, enlarge, alter, repair, remove or abandon any impoundment with capacity of greater than five thousand barrels used in association with an oil and gas operation until he or she has first secured from the secretary a certificate of approval for the same: Provided, That routine repairs that do not affect the safety of the impoundment are not subject to the application and approval requirements. A separate application for a certificate of approval must be submitted by a person for each impoundment he or she desires to place, construct, enlarge, alter, repair, remove or abandon, but one application may be valid for more than one impoundment involved in a single project.

    (c) The application fee for placement, construction, enlargement, alteration, repair or removal of an impoundment pursuant to this section is $300, and the fee shall accompany the application for certificate of approval.

    (d) Operators holding certificates of approval shall be assessed an annual registration fee of $100, which may be valid for more than one impoundment involved in a single project. Existing certificates of approval shall be extended for one year upon receipt of the annual registration fee, an inspection report, a monitoring and emergency action plan, and a maintenance plan: Provided, That where an approved, up-to-date inspection report, monitoring and emergency action plan, and maintenance plan are on file with the department, and where no outstanding violation(s) exist, then the certificate of approval will be extended without resubmission of the foregoing documents upon receipt of the annual registration fee.

    (e) Every application for a certificate of approval shall be made in writing on a form prescribed by the secretary and shall be signed and verified by the applicant. The application shall contain and provide information that may reasonably be required by the secretary to administer the provisions of this article.

    (f) Plans and specifications for the placement, construction, erosion and sediment control, enlargement, alteration, repair or removal and reclamation of impoundments shall be the charge of a registered professional engineer licensed to practice in West Virginia. Any plans or specifications submitted to the department shall bear the seal of a registered professional engineer.

    (g) Each certificate of approval issued by the secretary pursuant to this section may contain other terms and conditions as the secretary may prescribe.

    (h) The secretary may revoke or suspend any certificate of approval whenever the secretary determines that the impoundment for which the certificate was issued constitutes a danger to human life or property. If necessary to safeguard human life or property, the secretary may also amend the terms and conditions of any certificate by issuing a new certificate containing the revised terms and conditions.

    (1) Before any certificate of approval is amended or revoked by the secretary, the operator may request a hearing in accordance with the provisions of article five, chapter twenty-nine-a of this code.

    (2) A decision of the secretary to revoke or refusing to issue a certificate of approval shall be subject to judicial review by an administrative law judge of the department upon the appeal of the applicant for or holder of such certificate of approval, but in any such judicial review only the legality of the decision of the secretary pursuant to the Constitution and laws of this state and the United States shall be determined.

    (i) Upon expiration of the certificate of approval, or upon its revocation by the secretary, the operator shall, within sixty days, fill all impoundments that are not required or allowed by state or federal law or rule or agreement between the operator and the surface owner that allows the impoundment to remain open for the use and benefit of the surface owner and reclaim the site with the approved erosion and sediment control plan.

    (j) This section shall not apply to farm ponds constructed by the operator with the written consent of the surface owner, which will be used after completion of the drilling activity primarily for agricultural purposes, including without limitation livestock watering, irrigation, retention of animal wastes and fish culture and that have no potential to cause loss of human life in the event of embankment failure. The operator shall not use the farm pond in any way for anything other than fresh water storage. Any impoundment that is intended to be left permanent shall meet the requirements set forth by the United States Department of Agriculture’s Natural Resources Conservation Service “Conservation Practice Standard - Ponds” (Code 378).

    (k) An impoundment that is constructed in a manner that it (1) rises twenty-five feet or more above the natural bed of a stream or watercourse as measured from the downstream toe of the embankment and does or can impound fifteen acrefeet or more of water; or (2) rises six feet or more above the natural bed of a stream or watercourse as measured from the downstream toe of the embankment and does or can impound fifty acrefeet or more of water is, by definition, a dam and is thereby subject to the provisions of the West Virginia Dam Control Act, article fourteen, chapter twenty-two of this code.

    (l) The secretary is authorized to propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary to effectuate the provisions of this article.

§22-6-6. Permit required for well work; permit fee; application; soil erosion control plan.

    (a) It is unlawful for any person to commence any well work, including site preparation work which involves any disturbance of land, without first securing from the director a well work permit. An application may propose and a permit may approve two or more activities defined as well work.

    (b) The application for a well work permit shall be accompanied by applicable bond as prescribed by section twelve, fourteen or twenty-three of this article, and the applicable plat required by section twelve or fourteen of this article.

    (c) 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 whom the applicant must notify under any section of this article together with a certification and evidence that a copy of the application and all other required documentation has been delivered to all such persons;

    (2) The name and address of every coal operator operating coal seams under the tract of land on which the well is or may be located, and the coal seam owner of record and lessee of record required to be given notice by section twelve, if any, if said owner or lessee is not yet operating said coal seams;

    (3) The number of the well or such other identification as the director may require;

    (4) The type of well;

    (5) The well work for which a permit is requested;

    (6) The approximate depth to which the well is to be drilled or deepened, or the actual depth if the well has been drilled;

    (7) Any permit application fee required by law;

    (8) If the proposed well work will require casing or tubing to be set, the entire casing program for the well, including the size of each string of pipe, the starting point and depth to which each string is to be set, and the extent to which each such string is to be cemented;

    (9) If the proposed well work is to convert an oil well or a combination well or to drill a new well for the purpose of introducing pressure for the recovery of oil as provided in section twenty-five of this article, specifications in accordance with the data requirements of section fourteen of this article;

    (10) If the proposed well work is to plug or replug the well, (i) specifications in accordance with the data requirements of section twenty-three of this article, (ii) a copy of all logs in the operator's possession as the director may require, and (iii) a work order showing in detail the proposed manner of plugging or unplugging the well, in order that a representative of the director and any interested persons may be present when the work is done. In the event of an application to drill, redrill or deepen a well, if the well work is unsuccessful so that the well must be plugged and abandoned, and if the well is one on which the well work has been continuously progressing pursuant to a permit, the operator may proceed to plug the well as soon as the operator has obtained the verbal permission of the director or the director's designated representative to plug and abandon the well, except that the operator shall make reasonable effort to notify as soon as practicable the surface owner and the coal owner, if any, of the land at the well location, and shall also timely file the plugging affidavit required by section twenty-three of this article;

    (11) If the proposed well work is to stimulate an oil or gas well, specifications in accordance with the data requirements of section thirteen of this article;

    (12) The erosion and sediment control plan required under subsection (d) of this section for applications for permits to drill; and

    (13) Any other relevant information which the director may require by rule.

    (d) An erosion and sediment control plan shall accompany each application for a well work permit except for a well work permit to plug or replug any well. 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 division, in consultation 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 (33 U.S.C.1288). The erosion and sediment control plan shall become part of the terms and conditions of a well work permit, except for a well work permit to plug or replug any well, which is issued and the provisions of the plan shall be carried out where applicable in the operation. The erosion and sediment control plan shall set out the proposed method of reclamation which shall comply with the requirements of section thirty of this article.

    (e) The well operator named in such application shall designate the name and address of an agent for such 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 eleven, chapter twenty-two, 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 director of such termination and designate a new agent.

    (f) The well owner or operator shall install the permit number as issued by the director in a legible and permanent manner to the well upon completion of any permitted work. The dimensions, specifications and manner of installation shall be in accordance with the rules of the director.

    (g) The director may waive the requirements of this section and sections nine, ten and eleven of this article in any emergency situation, if the director deems such action necessary. In such case the director may issue an emergency permit which would be effective for not more than thirty days, but which would be subject to reissuance by the director.

    (h) The director shall deny the issuance of a permit if the director 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 within the time prescribed by the director pursuant to the provisions of sections three and four of this article and the rules promulgated hereunder, which time may not be unreasonable: Provided, That in the event that the director does find that a substantial violation has occurred and that the operator has failed to abate or seek review of the violation in the time prescribed, the director may suspend the permit on which said violation exists, after which suspension the operator shall forthwith cease all well work being conducted under the permit: Provided, however, That the director may reinstate the permit without further notice, at which time the well work may be continued. The director shall make written findings of any such determination 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 forty of this article. The director shall make a written finding of any such determination.

    (i) Any person who violates any provision of this section shall be 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.

§22-6-6. General environmental protection performance standards for oil and gas operations.

    (a) The secretary shall promulgate separate rules and establish best management practices directed toward the surface effects of oil and gas operations, embodying the requirements in subsection (b) of this section.

    (b) Each permit issued by the secretary pursuant to this article and relating to oil and gas operations shall require the operation at a minimum to:

    (1) Adopt measures consistent with best management practices in order to maintain the value and reasonably foreseeable use of surface lands;

    (2) Adopt measures consistent with best management practices in order to control fugitive particulate matter;

    (3) Plug all wells in accordance with the requirements of sections twenty-three and twenty-four of article and the rules promulgated pursuant thereto when such wells become abandoned pursuant to section nineteen of this article;

    (4) With respect to surface disposal of cuttings, stabilize all waste pits, including the use of impervious materials, if necessary, to assure that any leachate therefrom will not degrade surface or groundwaters below water quality standards established pursuant to applicable federal and State law and that the site is stabilized and revegetated in accordance with the erosion and sediment control manual provided for in section three of this article;

    (5) Establish on regraded areas and all other disturbed areas a diverse and permanent vegetative cover capable of self-regeneration and plant succession and at least equal in extent of cover to the natural vegetation of the area in accordance with the erosion and sediment control manual provided for in section three of this article;

    (6) Protect off-site areas from damages that may result from oil and gas operations in accordance with best management practices and the erosion and sediment control manual provided for in section three of this article;

    (7) Eliminate fire hazards and otherwise eliminate conditions which constitute a hazard to health and safety of the public;

    (8) 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-stream flow immediately downstream of the withdrawal location. In no case shall an operator withdraw water from ground or surface waters at volumes beyond what the waters can sustain; (B) Casing, sealing or otherwise managing wells to keep returned fluids from entering ground and surface waters, in accordance with the provisions of section twenty-one of this article; (C) Conducting oil and gas operations using best management practices so as to prevent additional contributions of suspended or dissolved solids to streamflow or runoff outside the permit area, but in no event shall the contributions be in excess of requirements set by applicable state or federal law; and (D) Registering all water supply wells with the Division of Oil and Gas and constructing and plugging all such wells in accordance with the standards of the Bureau for Public Health set forth in its legislative rule entitled Water Well Regulations. In lieu of plugging, the operator may transfer the well to the surface owner upon agreement of the parties. All drinking water wells within two thousand five hundred feet of the water supply well shall be flow tested by the operator upon request of the drinking well owner prior to operating the water supply well.

    (9) With respect to other surface impacts of oil and gas operations not specified in this subsection, including the construction of new roads or the improvement or use of existing roads to gain access to the site of oil and gas drilling activities and for storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities or other property or materials resulting from or incident to the activities associated with oil and gas operations, operate in accordance with the standards established in this article or the rules promulgated thereunder and best management practices; and

    (10) To the extent possible using best management practices, minimize adverse effects of the operation on fish, aquatic life, wildlife.

    (11) In addition to the other requirements of this article, an operator that drills any well using horizontal drilling methods shall comply with the following requirements:

    (A) Identification of water withdrawal locations. Within at least twenty-four hours, but no more than forty-eight hours, prior to the withdrawal of water, the operator shall identify 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 is available and must check flows on a daily basis for the duration of the withdrawal. Any variation from the methods previously approved by the secretary for determining if sufficient flow is available must be requested in writing by the operator.

    (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 discloses that the location is a water withdrawal point and the name and telephone number of the operator 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, gas well operators 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 hauler.

    (D) 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.

    (E) 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.

§22-6-7. Water pollution control permits; powers and duties of the director secretary; penalties.

    (a) In addition to a permit for well work, the director secretary, after public notice and an opportunity for public hearing, may either issue a separate permit, general permit or a permit consolidated with the well work permit for the discharge or disposition of any pollutant or combination of pollutants into waters of this state upon condition that such discharge or disposition meets or will meet all applicable State and federal water quality standards and effluent limitations and all other requirements of the director secretary.

    (b) It shall be is unlawful for any person conducting activities which are subject to the requirements of this article, unless that person holds a water pollution control permit therefor from the director secretary, which is in full force and effect, to:

    (1) Allow pollutants or the effluent therefrom, produced by or emanating from any point source, to flow into the water of this state;

    (2) Make, cause or permit to be made any outlet, or substantially enlarge or add to the load of any existing outlet, for the discharge of pollutants or the effluent therefrom, into the waters of this state;

    (3) Acquire, construct, install, modify or operate a disposal system or part thereof for the direct or indirect discharge or deposit of treated or untreated pollutants or the effluent therefrom, into the waters of this state, or any extension to or addition to such disposal system;

    (4) Increase in volume or concentration any pollutants in excess of the discharges or disposition specified or permitted under any existing permit;

    (5) Extend, modify or add to any point source, the operation of which would cause an increase in the volume or concentration of any pollutants discharging or flowing into the waters of the state;

    (6) Operate any disposal well for the injection or reinjection underground of any pollutant, including, but not limited to, liquids or gasses, or convert any well into such a disposal well or plug or abandon any such disposal well.

    (c) Notwithstanding any provision of this article or articles seven, eight, nine, or ten or twenty-one of this chapter to the contrary, the director secretary shall have the same powers and duties relating to inspection and enforcement as those granted under article eleven, chapter twenty-two of this code in connection with the issuance of any water pollution control permit or any person required to have such a water pollution control permit.

    (d) Any person who violates any provision of this section, any order issued under this section or any permit issued pursuant to this section or any rule of the director secretary relating to water pollution or who willfully or negligently violates any provision of this section or any permit issued pursuant to this section or any rule or order of the director secretary relating to water pollution or who fails or refuses to apply for and obtain a permit or who intentionally misrepresents any material fact in an application, record, report, plan or other document filed or required to be maintained under this section shall be subject to the same penalties for such those violations as are provided for in sections twenty-two and twenty-four, article eleven, chapter twenty-two of this code: Provided, That the provisions of section twenty-six, article eleven, chapter twenty-two of this code relating to exceptions to criminal liability shall also apply.

    All applications for injunction filed pursuant to section twenty-two, article eleven, chapter twenty-two of the code shall take priority on the docket of the circuit court in which pending, and shall take precedence over all other civil cases.

    (e) Any water pollution control permit issued pursuant to this section or any order issued in connection with such a permit for the purpose of implementing the "national pollutant discharge elimination system" established under the federal Clean Water Act shall be issued by the chief of the office of water resources of the division in consultation with the chief of the office of oil and gas of the division secretary and shall be appealable to the environmental quality board pursuant to the provisions of section twenty-five, article eleven, chapter twenty-two and section seven, article one, chapter twenty-two-b of this code.

§22-6-8. Permits not to be on flat well royalty leases; legislative findings and declarations; permit requirements.

    (a) The Legislature hereby finds and declares:

    (1) That a significant portion of the oil and gas underlying this state is subject to development pursuant to leases or other continuing contractual agreements wherein the owners of such the oil and gas are paid upon a royalty or rental basis known in the industry as the annual flat well royalty basis, in which the royalty is based solely on the existence of a producing well, and thus is not inherently related to the volume of the oil and gas produced or marketed;

    (2) That continued exploitation of the natural resources of this state in exchange for such wholly inadequate compensation is unfair, oppressive, works an unjust hardship on the owners of the oil and gas in place, and unreasonably deprives the economy of the State of West Virginia of the just benefit of the natural wealth of this state;

    (3) That a great portion, if not all, of such leases or other continuing contracts based upon or calling for an annual flat well royalty have been in existence for a great many years and were entered into at a time when the techniques by which oil and gas are currently extracted, produced or marketed were not known or contemplated by the parties, nor was it contemplated by the parties that oil and gas would be recovered or extracted or produced or marketed from the depths and horizons currently being developed by the well operators;

    (4) That while being fully cognizant that the provisions of section 10, article I of the United States Constitution and of section 4, article III of the Constitution of West Virginia, proscribe the enactment of any law impairing the obligation of a contract, the Legislature further finds that it is a valid exercise of the police powers of this state and in the interest of the State of West Virginia and in furtherance of the welfare of its citizens, to discourage as far as Constitutionally possible the production and marketing of oil and gas located in this state under the type of leases or other continuing contracts described above.

    (b) In the light of the foregoing findings, the Legislature hereby declares that it is the policy of this state, to the extent possible, to prevent the extraction, production or marketing of oil or gas under a lease or leases or other continuing contract or contracts providing a flat well royalty or any similar provisions for compensation to the owner of the oil and gas in place, which is not inherently related to the volume of oil or gas produced or marketed, and toward these ends, the Legislature further declares that it is the obligation of this state to prohibit the issuance of any permit required by it for the development of oil or gas where the right to develop, extract, produce or market the same is based upon such flat well royalty leases or other continuing contractual agreements.

    (c) In addition to any requirements contained in this article with respect to the issuance of any permit required for the drilling, redrilling, deepening, fracturing, stimulating, pressuring, converting, combining or physically changing to allow the migration of fluid from one formation to another, no such permit shall be hereafter issued unless the lease or leases or other continuing contract or contracts by which the right to extract, produce or market the oil or gas is filed with the permit application. for such permit. In lieu of filing the lease or leases or other continuing contract or contracts, the applicant for a permit described herein may file the following:

    (1) A brief description of the tract of land including the district and county wherein the tract is located;

    (2) The identification of all parties to all leases or other continuing contractual agreements by which the right to extract, produce or market the oil or gas is claimed;

    (3) The book and page number wherein each such lease or contract by which the right to extract, produce or market the oil or gas is recorded; and

    (4) A brief description of the royalty provisions of each such lease or contract.

    (d) Unless the provisions of subsection (e) are met, no such permit shall be hereafter issued after this article takes effect for the drilling of a new oil or gas well or for the redrilling, deepening, fracturing, stimulating, pressuring, converting, combining or physically changing to allow the migration of fluid from one formation to another, of an existing oil or gas production well, where or if the right to extract, produce or market the oil or gas is based upon a lease or leases or other continuing contract or contracts providing for flat well royalty or any similar provision for compensation to the owner of the oil or gas in place which is not inherently related to the volume of oil and gas so extracted, produced and marketed.

    (e) To avoid the permit prohibition of subsection (d), the applicant may file with such the application an affidavit which certifies that the affiant is authorized by the owner of the working interest in the well to state that it shall tender to the owner of the oil or gas in place not less than one-eighth of the total amount paid to or received by or allowed to the owner of the working interest at the wellhead for the oil or gas so extracted, produced or marketed before deducting the amount to be paid to or set aside for the owner of the oil or gas in place, on all such oil or gas to be extracted, produced or marketed from the well. If such that affidavit be is filed with such the application, then such the application for permit shall be treated as if such the lease or leases or other continuing contract or contracts comply with the provisions of this section.

    (f) The owner of the oil or gas in place shall have a cause of action to enforce the owner's rights established by this section.

    (g) The provisions of this section shall not affect or apply to any lease or leases or other continuing contract or contracts for the underground storage of gas or any well utilized in connection therewith or otherwise subject to the provisions of article nine of this chapter.

    (h) The director secretary shall enforce this requirement irrespective regardless of when the lease or other continuing contract was executed.

    (i) The provisions of this section shall not adversely affect any rights to free gas.

§22-6-9. Notice to property owners.

    (a) Prior to filing a permit application, the operator shall provide notice to the surface owner at least seventy-two hours but no more than forty-five days prior to entering the surface tract to conduct any plat surveys required pursuant to section twelve of this article.

    (a) (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 shall deliver, by personal service or by certified mail, return receipt requested registered or certified mail or by any method of delivery that requires a receipt or signature confirmation, copies of the application, well plat, and erosion and sediment control plan required by section six three 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 proposed 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 the 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 three of this article; and

    (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; and

    (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 utilized for the placement, construction, enlargement, alteration, repair, removal or abandonment of any impoundment as described in section five of this article; and

    (5) The operator of any storage field within which the proposed well work activity is to take place.

    (b) (c) If more than three tenants in common or other coowners of interests described in subsection (a) of this section hold interests in such 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, or 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 such notice and information as the director secretary 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 on the filing date of the permit application shall receive actual service of the documents required by subsection (a) of this section.

    (c) (d) Materials served upon persons described in subsections (a) (b) and (b) (c) of this section shall contain a statement of the methods and time limits for filing comments, who may file comments, and the name and address of the director secretary for the purpose of filing comments and obtaining additional information, and a statement that such those 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) (e) 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 modifying or denying the permit if such that person requests the receipt thereof of them as a part of the his or her comments concerning said the permit application.

    (f) The surface owner and the coal owner, operator or lessee shall also be 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, if that person requests receipt of that notice as a part of his or her comments concerning the permit application.

    (e) (g) Persons entitled to notice may contact the district office of the division 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 such that list of names the division department 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) (b) and (c), section nine of this article may file comments with the director secretary as to the location or construction of the applicant's proposed well work within fifteen thirty days after the administratively complete application is filed with the director secretary.

    (b) Prior to the issuance of any permit for well work, the applicant shall certify to the director secretary 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 indicating that the notice provided for in section nine of this article was conducted.

§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 by all such persons, the director may issue the well work permit at any time.

    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, 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.

§22-6-11. Inspections; monitoring; right of entry; inspection of records; identification signs.

    (a) The secretary shall cause to be made inspections of oil and gas operations as are necessary to effectively enforce the requirements of this article, and for those purposes the secretary or his or her authorized representative shall, without advance notice and upon presentation of appropriate credentials: (A) Have the right of entry to, upon or through oil and gas operations or any premises in which any records required to be maintained pursuant to this chapter are located; and (B) At reasonable times and without delay, have access to and copy any records and inspect any monitoring equipment or method of operation required by this chapter of the code.

    (b) For the purpose of enforcement under this article, in the administration and enforcement of any permit under this article or for determining whether any person is in violation of any requirement of this article, the secretary shall, at a minimum, require any operator to:

    (1) Establish and maintain appropriate records;

    (2) Make appropriate reports to the department; and

    (3) Provide any other information relative to oil and gas operations as the secretary finds reasonable and necessary.

    (c) Inspections of oil and gas operations shall be made on an irregular basis without prior notice to the operator or the operator's agents or employees, except for necessary on-site meetings with the operator. The inspections shall include the filing of inspection reports adequate to enforce the requirements, terms, and purposes of this article.

    (d) Each operator shall maintain at the well site a clearly visible monument which sets forth the name, business address and telephone number of the operator, and the API number of the well.

    (e) Copies of any records, reports, inspection materials or information obtained pursuant to this article by the secretary shall be made available to the public so that they are conveniently available to residents in the areas of oil and gas operations, unless specifically exempted by this article or the West Virginia Freedom of Information Act as set forth in article one, chapter twenty-nine-b of this code.

    (f) Whenever on the basis of available information, including reliable information from any person, the secretary has cause to believe that any person is in violation of this article or article eight, nine, ten, eleven or twenty-one of this chapter or any permit condition or rule promulgated thereunder, the secretary shall immediately order inspection of the operation at which the alleged violation is occurring, unless the information is available as a result of a prior state inspection.

    (g) When requested by the operator, the secretary may provide for a compliance conference with his or her authorized representative to review the compliance status of any oil and gas operation. Any such conference may not constitute an inspection as defined in this section.

§22-6-12. Plats prerequisite to drilling or fracturing wells; preparation and contents; notice and information furnished to coal operators, owners or lessees; issuance of permits; performance bonds or securities in lieu thereof; bond forfeiture.

    (a) Before drilling for oil or gas, or before fracturing or stimulating a well on any tract of land, the well operator shall have a plat prepared by a licensed land professional surveyor or registered professional engineer showing the district and county in which the tract of land is located, the name and acreage of the same, the names of the owners of adjacent tracts, the proposed or actual location of the well determined by survey, the courses and distances of such the location from two permanent points or landmarks on said the tract, all mineral tract boundaries within the scope of the plat, and the number to be given the well. In the event the tract of land on which the said well proposed to be drilled or fractured is located is known to be underlain by one or more coal seams, copies of the plat shall be forwarded by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation to each and every coal operator operating said coal seams beneath said the tract of land who has mapped the same and filed such the maps with the Office of Miners' Health, Safety and Training in accordance with chapter twenty-two-a of this code, and the coal seam owner of record and lessee of record, if any, if said the owner or lessee has recorded the declaration or is owner or lessee of record as provided in section thirty-six of this article and if said the owner or lessee is not yet operating said the coal seams beneath said the tract of land. With each of such the plats there shall be enclosed a notice (form for which shall be furnished on request by the secretary) addressed to the secretary and to each such coal operator, owner and lessee, if any, at their respective addresses, informing them that such the plat and notice are being mailed to them respectively by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation, pursuant to the requirements of this article.

    (b) If no objections are made or are found by the secretary to such the proposed location or proposed fracturing within fifteen thirty days from receipt of such the plat and notice by the secretary, the same they shall be filed and become a permanent record of such the location or fracturing subject to inspection at any time by any interested person, and the secretary may forthwith issue to the well operator a permit reciting the filing of such the plat, that no objections have been made by the coal operators, owners, and lessees, if any, or found thereto by the secretary, and authorizing the well operator to drill at such the location, or to fracture the well. Unless the secretary has objections to such the proposed location or proposed fracturing or stimulating, such the permit may be issued prior to the expiration of such fifteen the thirty-day period upon the obtaining by the well operator of obtaining the written consent in writing of the coal operator or operators, owners, and lessees, if any, to whom copies of the plat and notice shall have been were mailed as herein required, and upon presentation of such the written consent to the secretary. The notice above provided for may be given to the coal operator by delivering or mailing it by registered or certified mail as provided for above to any agent or superintendent in actual charge of the mines.

    (c) A permit to drill, or to fracture or stimulate an oil or gas well shall not be issued unless the application therefor is accompanied by a bond as provided in section twenty-six of this article.

§22-6-13. Notice to coal operators, owners or lessees and director secretary of intention to fracture certain other wells; contents of such the notice; bond; permit required; appeal from order of issuance or refusal of permit to drill or fracture; procedure.

    (a) Before fracturing any well the well operator shall, by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation, forward a notice of intention to fracture such the well to the director secretary and to each and every coal operator operating coal seams beneath said the tract of land who has mapped the same them and filed such the maps with the Office of Miners' Health, Safety and Training in accordance with chapter twenty-two-a of this code, and the coal seam owner and lessee, if any, if said the owner of record or lessee of record has recorded the declaration or is the owner or lessee of record as provided in section thirty-six of this article and if said the owner or lessee is not yet operating said the coal seams beneath said the tract of land.

    (b) The notice shall be addressed to the director secretary and to each such coal operator at their respective addresses, shall contain the number of the drilling permit for such the well and such any other information as may be required by the director secretary to enable the division department and the coal operators to locate and identify such the well and shall inform them that such notice is being mailed sent to them, respectively, by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation, pursuant to the requirements of this article. The form for such the notice of intention shall be furnished on request by the director secretary.

    (c) If no objections are made or are found by the director secretary to such the proposed fracturing within fifteen thirty days from receipt of such the notice by the director secretary, the same it shall be filed and become a permanent record of such the fracturing, subject to inspection at any time by any interested person, and the director secretary shall forthwith issue to the well operator a permit reciting the filing of such the notice, that no objections have been made by the coal operators or found thereto by the director secretary, and authorizing the well operator to fracture such the well. Unless the director secretary has objections to such the proposed fracturing, such the permit shall may be issued prior to the expiration of such fifteen the thirty-day period upon the obtaining by the well operator of the obtaining the written consent in writing of the coal operator or operators, owners or lessees, if any, to whom notice of intention to fracture shall have been mailed was sent as herein required by this article and upon presentation of such the written consent to the director secretary. The notice above provided for may be given to the coal operator by delivering or mailing it by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation as above to any agent or superintendent in actual charge of mines.

    (d) Any party to the proceeding provided for in this section or section seven, article eight, chapter twenty-two-c of this code adversely affected by the issuance of a drilling permit or to the issuance of a fracturing permit or the refusal of the secretary to grant a drilling permit or fracturing permit is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern the judicial review with like effect as if the provisions of that section four were set forth in extenso in this section.

    (e) The judgment of the circuit court shall be 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.

§22-6-14. Plats prerequisite to introducing liquids or waste into wells; preparation and contents; notice and information furnished to coal operators, owners or lessees and director secretary; issuance of permits; performance bonds or security in lieu thereof; appeal from order of issuance or refusal of permit for drilling location for introduction of liquids or waste or from conditions of converting procedure.

    (a) Before drilling a well for the introduction of liquids for the purposes provided for in section twenty-five of this article or for the introduction of liquids for the disposal of pollutants or the effluent therefrom on any tract of land or before converting an existing well for such those purposes, the well operator shall have a plat prepared by a registered professional engineer or licensed land professional surveyor showing the district and county in which the tract of land is located, the name and acreage of the same, the names of the owners of all adjacent tracts, the proposed or actual location of the well or wells determined by a survey, the courses and distances of such the location from two permanent points of land marked on said the tract, all mineral tract boundaries within the scope of the plat, and the number to be given to the well and shall forward by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation the original and one copy of the plat to the director secretary. In addition, the well operator shall provide the following information on the plat or by way of attachment thereto to the director secretary in the manner and form prescribed by the director's rules promulgated by the secretary: (1) The location of all wells, abandoned or otherwise located within the area to be affected; (2) Where available, the casing records of all such those wells; (3) Where available, the drilling log of all such those wells; (4) The maximum pressure to be introduced; (5) The geological formation into which such the liquid or pressure is to be introduced; (6) A general description of the liquids to be introduced; (7) The location of all water-bearing horizons above and below the geological formation into which such the pressure, liquid or waste is to be introduced; and (8) Such Any other information as the director secretary by rule may require.

    (b) In the event the tract of land on which said the well proposed to be drilled or converted for the purposes provided for in this section is located is known to be underlaid with coal seams, copies of the plat and all information required by this section shall be forwarded by the well operator by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation to each and every coal operator operating coal seams beneath said the tract of land who has mapped the same and filed such those maps with the Office of Miners' Health, Safety and Training in accordance with chapter twenty-two-a of this code and the coal seam owner of record and lessee of record, if any, if said the owner or lessee has recorded the declaration or is the owner or lessee of record as provided in section thirty-six of this article and if said the owner or lessee is not yet operating said the seams beneath said the tract of land. With each of such the plats, there shall be enclosed a notice (form for which shall be furnished on request by the director secretary) addressed to the director secretary and to each such coal operator, owner or lessee, if any, at their respective addresses, informing them that such the plat and notice are being mailed to them, respectively, by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation, pursuant to the requirements of this section.

    (c) If no objections are made by any such coal operator, owner or lessee or the director secretary, such the proposed drilling or converting of the well or wells for the purposes provided for in this section within thirty days from the receipt of such the plat and notice by the director secretary, the same they shall be filed and become a permanent record of such the location or well, subject to inspection at any time by any interested person, and the director secretary may after public notice and opportunity to comment, issue such a permit authorizing the well operator to drill at such the location or convert such an existing well or wells for the purposes provided for in this section. The notice above provided for may be given to the coal operator by delivering or mailing it by registered or certified mail as provided for above to any agent or superintendent in actual charge of the mines.

    (d) A permit to drill a well or wells or convert an existing well or wells for the purposes provided for in this section shall not be issued until all of the bonding provisions required by the provisions of section twelve of this article have been fully complied with, and all such bonding provisions shall apply to all wells drilled or converted for the purposes provided for in this section as if such those wells had been drilled for the purposes provided for in section twelve of this article, except that such the bonds shall be conditioned upon full compliance with all laws and rules relating to the drilling of a well or the converting of an existing well for the purposes provided for in said section twenty-five or introducing of liquids for the disposal of pollutants including the redrilling, deepening, casing, plugging or abandonment of all such those wells.

    (e) Any party to the proceeding provided for in this section adversely affected by the order of issuance of a drilling permit or to the issuance of a fracturing permit or the refusal of the secretary to grant a drilling permit or fracturing permit is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern that judicial review with like effect as if the provisions of that section four were set forth in extenso in this section.

    (f) The judgment of the circuit court shall be 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.

§22-6-15. Objections to proposed drilling of deep wells and oil wells; objections to fracturing; notices and hearings; agreed locations or conditions; indication of changes on plats, etc.; issuance of permits.

    (a) When a proposed deep well drilling site or oil well drilling site or any site is above a seam or seams of coal, then the coal operator operating said 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 owner, operator or lessee, whether or not the coal owner, operator or lessee is operating the coal seams, may within fifteen thirty days from the of receipt by the director secretary of the plat and notice required by section twelve of this article or within fifteen thirty days from the of receipt by the director secretary of notice required by section thirteen of this article, file objections in writing (forms for which will be furnished by the director on request) to such the proposed drilling or fracturing with the director secretary, setting out therein as definitely specifically as is reasonably possible the ground or grounds on which such the objections are based.

    (b) If any objection to the proposed drilling is filed or if any objection is made by the director secretary, the director secretary shall notify the well operator of the character of the objections and by whom made and fix a time and place, not less than fifteen thirty days from the end of said fifteen the thirty-day period, at which such the objections will be considered. of which At that time and place the well operator and all objecting coal operators, owners or lessees, if any, shall be given at least ten fifteen days' written notice by the director, secretary by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation and summoned to appear. At the time and place so fixed, the well operator and the objecting coal operators, owners or lessees, if any, or such any of them as who are present or represented, shall proceed to consider the objections. In the case of proposed drilling, such the parties present or represented may agree upon either the location as made or so moved so as to satisfy all objections and meet the approval of the director secretary. and any Any change in the original location so agreed upon and approved by the director secretary shall be indicated on said the plat on file with the director secretary, and the distance and direction of the new location from the original location shall be shown, and as so altered, the plat shall be filed and become a permanent record. and in In the case of proposed fracturing, such the parties present or represented may agree upon conditions under which the well is to be fractured which will protect life and property and which will satisfy all objections and meet the approval of the director secretary, at which time the plat and notice required by section twelve or the notice required by section thirteen, as the case may be, shall be filed and become a permanent record. Whereupon the director secretary shall forthwith immediately issue to the well operator a drilling or fracturing permit, as the case may be, reciting the filing of the plat and notice required by said section twelve or the notice required by said section thirteen, as the case may be, that at a hearing duly held a location as shown on the plat or the conditions under which the fracturing is to take place for the protection of life and property were agreed upon and approved, and that the well operator is authorized to drill at such the location or to fracture at the site shown on such the plat or to fracture the well identified in the notice required by section thirteen, as the case may be.

    (b) (c) In the event the well operator and the objecting coal operators, owners or lessees, if any, or such as any who are present or represented at such the hearing are unable to agree upon a drilling location or upon a drilling location that meets the approval of the director secretary, then the director secretary shall proceed to hear the evidence and testimony in accordance with sections one and two, article five, chapter twenty-nine-a of this code, except where such provisions are inconsistent with this article. The director secretary shall take into consideration in arriving at his or her decision:

    (1) Whether the drilling location is above or in close proximity to any mine opening or shaft, entry, travelway, airway, haulageway, drainageway or passageway, loadout, stockpile, pit, highwall, active surface mining, or to any proposed extension thereof in any operated or abandoned or operating coal mine or coal mines 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 well or pillar of coal, taking into consideration the surface topography;

    (3) Whether a well can be drilled safely, taking into consideration the dangers from creeps, squeezes or other disturbances due to the extraction of coal; and

    (4) The extent to which the proposed drilling location unreasonably interferes with the safe recovery of coal, oil and gas.

    At the close of the hearing or within ten days thereafter the director secretary shall issue an order:

     (1) Refusing to issue a permit;

    (2) Issuing a permit for the proposed drilling location; or

    (3) Issuing a permit for a drilling location different from that requested by the well operator; or

    (4) Placing other limitations on the drilling location or process as the secretary finds necessary to protect human health or safety or the environment.

    The order shall state with particularity the reasons for the director's secretary’s order and shall be mailed by registered or certified mail or by any method of delivery that requires receipt or signature confirmation to the parties present or represented at such the hearing. If the director secretary has ruled that a permit will be issued, the director secretary shall issue a permit effective ten days after such the order is mailed, except that for good cause shown, the director secretary may stay the issuance of a permit for a period not to exceed thirty days.

    If a permit is issued, the director secretary shall indicate the new drilling location on the plat on file and shall number and keep an index of and docket each plat and notice received by mail as provided in section twelve of this article and each notice mailed as provided in section thirteen of this article, entering into such the docket the name of the well operator and the names and addresses of all persons notified, the dates of hearings and all actions taken by the director secretary. The director secretary shall also prepare a record of the proceedings, which record shall include all applications, plats and other documents filed with the director secretary, 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 director secretary shall be open to inspection by the public.

    (c) (d) In the event the well operator and the objecting coal operators, owners or lessees, if any, or such as any who are present or represented at such the hearing are unable to agree upon the conditions under which the well is to be fractured so as to protect life and property or upon conditions of fracturing that meet with the approval of the director secretary, then the director secretary shall proceed to hear the evidence and testimony in accordance with sections one and two, article five, chapter twenty-nine-a of this code, except where such provisions are inconsistent with this article.

    The director secretary shall take into consideration whether the well can be fractured safely, taking into consideration the dangers from creeps, squeezes or other disturbances.

    At the close of the hearing, or within ten days thereafter, the director secretary shall issue an order stating the conditions under which the well is to be fractured, provided the well can be fractured safely, taking into consideration the dangers from creeps, squeezes or other disturbances. If such fracturing cannot be done safely, the director secretary shall issue an order stating with particularity the reasons for refusing to issue a permit.

    The order shall state with particularity the reasons for the director's secretary’s order and shall be mailed by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation to the parties present or represented at such the hearing. If the director secretary has ruled that a permit will be issued, the director secretary shall issue a permit effective ten days after such the order is mailed, except that for good cause shown, the director secretary may stay the issuance of a permit for a period not to exceed thirty days.

    If a permit is issued, the director secretary shall indicate the well to be fractured on the plat on file and shall number and keep an index of and docket each plat and notice received by mail as provided in section twelve of this article and each notice received by mail as provided in section thirteen of this article, entering into such the docket the name of the well operator, the names and addresses of all persons notified, the dates of hearings, and all actions taken by the director secretary. The director secretary shall also prepare a record of the proceedings, which record shall include all applications, plats and other documents filed with by the director secretary, 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 director secretary shall be open to inspection by the public.

§22-6-16. Objections to proposed drilling or converting for introducing liquids or waste into wells; notices and hearings; agreed location or conditions; indication of changes on plats, etc.; issuance of permits; docket of proceeding.

    (a) When a well is proposed to be drilled or converted for the purposes provided for in section fourteen of this article and is above a seam or seams of coal, then the coal operator operating said 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 owner, operator or lessee, whether or not such coal owner, operator or lessee is operating said coal seams, may within fifteen thirty days from the of receipt by the director secretary of the plat and notice required by section fourteen of this article, file objections in writing (forms for which will be furnished by the director on request) to such the proposed drilling or conversion.

    (b) In any case wherein a well proposed to be drilled or converted for the purposes provided for in section fourteen of this article shall, in the opinion of the chief of the office of water resources Director of the Division of Water and Waste Management, affect detrimentally the reasonable standards of purity and quality of the waters of the state, such chief the director shall, within the time period established by the director secretary for the receipt of public comment on such the proposed drilling conversion, file with the director such secretary those objections in writing, to such proposed drilling or conversion setting out therein as definitely specifically as is reasonably possible the ground or grounds upon which such the objections are based and indicating the conditions, consistent with the provisions of this article and the rules promulgated thereunder, as may be necessary for the protection of the reasonable standards of the purity and quality of such the waters of the state under which such the proposed drilling or conversion may be completed to overcome such any objections. if any.

    (c) If any objection or objections to the proposed drilling are so filed or are made by the director secretary, the director secretary shall notify the well operator of the character of the objections and by whom made and fix a time and place, not less than thirty days from the end of said the thirty-day period, at which such those objections will be considered. of which At that time and place the well operator and all objecting coal operators, the owners or lessees, if any, or such chief, the director shall be given at least ten fifteen days' written notice by the director secretary by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation and summoned to appear. At the time and place so fixed, the well operator and the objecting coal operators, owners or lessees, if any, or such any of them as who are present or represented or such chief, the director shall proceed to consider the objections. In the case of proposed drilling or converting of a well for the purposes provided for in section fourteen of this article, such the parties present or represented may agree upon either the location as made or so moved so as to satisfy all objections and meet the approval of the director, secretary. and any Any change in the original location so agreed upon and approved by the director secretary shall be indicated on said the plat on file with the director secretary, and the distance and direction of the new location from the original location shall be shown and, as so altered, the plat shall be filed and become a permanent record. In the case of proposed conversion, such the parties present or represented may agree upon conditions under which the conversion is to take place for the protection of life and property or for protection of reasonable standards of purity and quality of the waters of the state. At which time the plat and notice required by section fourteen shall be filed and become a permanent record. Whereupon the director secretary may issue to the well operator a permit to drill or convert, as the case may be, reciting the filing of the plat and notice required by said section fourteen that at a hearing duly held a location as shown on the plat or the conditions under which the conversion is to take place for the protection of life and property and reasonable standards of purity and quality of the waters of the state where agreed upon and approved and that the well operator is authorized to drill at such the location or to convert at the site shown on such the plat, as the case may be.

    (d) (1) In the case where the well operator and the objecting coal operators, owners or lessees, if any, and such chief, the director or such as any who are present or represented at such the hearing are unable to agree upon a drilling location, or upon a drilling location that meets the approval of the director secretary, then the director secretary shall proceed to hear the evidence and testimony in accordance with sections one and two, article five, chapter twenty-nine-a of this code, except where such provisions are inconsistent with this article. The director secretary shall take into consideration upon in arriving at his or her decision:

    (A) Whether the drilling location is above or in close proximity to any mine opening or shaft, entry, traveling travelway, air haulage, drainage or passageway, loadout, stockpile, pit, highwall, active surface mining, or to any proposed extension thereof, in any operated or abandoned or operating coal mine, or coal mine already surveyed and platted, but not yet being operated;

    (B) Whether the proposed drilling can reasonably be done through an existing or planned pillar of coal, or in close proximity to an existing well or pillar of coal, taking into consideration the surface topography;

    (C) Whether a well can be drilled safely, taking into consideration the dangers from creeps, squeezes or other disturbances, due to the extraction of coal; and

    (D) The extent to which the proposed drilling location unreasonably interferes with the safe recovery of coal, oil and gas.

    (2) At the close of the hearing or within ten days thereafter the director secretary shall issue an order:

    (A) Refusing to issue a permit;

    (B) Issuing a permit for the proposed drilling location; or

    (C) Issuing a permit for a drilling location different than that requested by the well operator; or

    (D) Placing other limitations on the drilling location or process as the secretary finds necessary to protect human health or safety or the environment.

    The order shall state with particularity the reasons for the director's secretary’s order and shall be mailed by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation to the parties present or represented at such the hearing. If the director secretary has ruled that a permit will be issued, the director secretary shall issue a permit effective ten days after such the order is mailed, Except except that for good cause shown, the director secretary may stay the issuance of a permit for a period not to exceed thirty days.

    (3)If a permit is issued, the director secretary shall indicate the new drilling location on the plat on file with the director secretary and shall number and keep an index of and docket each plat and notice mailed to the director secretary as provided in section twelve of this article, and each notice mailed to the director secretary as provided in section thirteen of this article, entering into such the docket the name of the well operator and the names and addresses of all persons notified, the dates of hearings and all actions taken by the director secretary, permits issued or refused, the papers filed, and a transcript of the hearing. This shall constitute a record of the proceedings before the director secretary and shall be open to inspection by the public.

    (e) (1) In the case the well operator and the objecting coal operators, owners or lessees, if any, and such chief, the director or such as any who are present or represented at such the hearing are unable to agree upon the conditions under which the well is to be converted so as to protect life and property and the reasonable standards of purity and quality of the waters of the state or upon conditions of converting that meet with the approval of the director secretary, then the director secretary shall proceed to hear the evidence and testimony in accordance with sections one and two, article five, chapter twenty-nine-a of this code, except where such provisions are inconsistent with this article. The director secretary shall take into consideration upon in making his or her decision:

    (A) Whether the well can be converted safely, taking into consideration the dangers from creeps, squeezes or other disturbances; and

    (B) Whether the well can be converted, taking into consideration the reasonable standards of the purity and quality of the waters of the state.

    (2) At the close of the hearing, or within ten days thereafter, the director secretary shall issue an order stating the conditions under which the conversion is to take place, providing the well can be converted safely taking into consideration the dangers from creeps, squeezes or other disturbances and the reasonable standards of purity and quality of the waters of this state. If such converting cannot be done safely or if the reasonable standards of purity and quality of such the waters of the state will be endangered, the director secretary shall issue an order stating with particularity the reasons for refusing to issue a permit.

    (3) The order shall state with particularity the reasons for the director's secretary’s order and shall be mailed by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation to the parties present or represented at such the hearing. If the director secretary has ruled that a permit will be issued, such the permit shall become effective ten days after the division department has mailed such the order, Except except for good cause shown, the director secretary may stay the issuance of a permit for a period not to exceed thirty days.

    (4) If a permit is issued, the director secretary shall indicate the well to be converted on the plat on file with the director, secretary and shall number and keep an index of and docket each plat and notice mailed to the director secretary as provided in section fourteen of this article, entering into such the docket the name of the well operator and the names and addresses of all persons notified, the dates of hearings and all actions taken by the director secretary, permits issued or refused, the papers filed, and a transcript of the hearings. This shall constitute a record of the proceedings before the director secretary and shall be open to inspection by the public.

§22-6-17. Objections to proposed drilling or deepening of shallow gas wells; notice to chair of review board; indication of changes on plats; issuance of permits.

    (a) When a proposed shallow well drilling site is above a seam or seams of coal, then the coal owner, of any such coal seam operator or lessee, whether or not the coal owner, operator or lessee is operating the coal seams may, within fifteen thirty days from the of receipt by the director secretary of the plat and notice required by section twelve of this article, file objections in writing (forms for which will be furnished by the director on request) to such the proposed drilling or deepening with the director secretary, setting out therein as definitely specifically as is reasonably possible the ground or grounds on which such those objections are based.

    (b) If any such objection is filed or if any objection is made by the director secretary, the director secretary shall forthwith immediately mail, by registered or certified mail, to serve upon the chair of the review board a notice that an objection to the proposed drilling or deepening of a shallow well has been filed with or made by the director, secretary and shall enclose in such that notice a copy of all objections and of the application and plat filed with the director secretary in accordance with the provisions of section twelve of this article.

    (1) Thereafter, no further action shall be taken on such the application by the director secretary until an order is received from the review board directing the director secretary to:

    (a) (A) Refuse a drilling permit; or

    (b) (B) Issue a drilling permit for the proposed drilling location; or

    (c) (C) Issue a drilling permit for an alternate drilling location different from that requested by the well operator; or

    (d) (D) Issue a drilling permit either for the proposed drilling location or for an alternate drilling location different from that requested by the well operator, but not allow the drilling of the well for a period of not more than one year from the date of issuance of such the permit; or

    (E) Place other limitations on the drilling location or process as the review board finds necessary to protect human health or safety or the environment.

    (2) Upon receipt of such the review board order, the director secretary shall promptly undertake the action directed by the review board, except that the director secretary shall not issue a drilling permit unless the applicant has complied with all other provisions of this article (except section fifteen) pertaining to the application for and approval of a drilling permit have been complied with. All permits issued by the director secretary pursuant to this section shall be effective ten days after issuance unless the review board orders the director secretary to stay the effectiveness of a permit for a period not to exceed thirty days from the date of issuance.

    (3) If a permit is issued, the director secretary shall indicate the approved drilling location on the plat filed with the director secretary in accordance with the provisions of section twelve of this article and shall number and keep an index of and docket each plat and notice mailed to the director secretary as provided in section twelve of this article and each notice mailed to the director secretary as provided in section thirteen of this article, entering into such the docket the name of the well operator and the names and addresses of all persons notified, the dates of conferences, hearings, and all other actions taken by the director secretary and the review board. The director secretary shall also prepare a record of the proceedings, which record shall include all applications, plats and other documents filed with the director secretary, 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 director secretary shall be open to inspection by the public.

§22-6-18. Protective devices -- When well penetrates workable coal bed; when gas is found beneath or between workable coal beds.

    (a) 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 coal bed or beds in such a manner as that will exclude all oil, gas or gas pressure from the coal bed or beds, except such oil, gas or gas pressure as may be found in such coal bed or beds. Such The string of casing shall be run to a point at least thirty feet below the lowest workable coal bed which the well penetrates and shall be circulated and cemented from such that point to the surface in such a manner as provided for in reasonable rules promulgated by the director secretary in accordance with the provisions of chapter twenty-nine-a. After any such that string of casing has been so run and cemented to the surface, drilling may proceed to the permitted depth.

    (b) In the event that gas is found beneath a workable coal bed before the hole has been reduced from the size it had at the coal bed, a packer shall be placed below the coal bed, and above the gas horizon, and the gas by this means diverted to the inside of the adjacent string of casing through perforations made in such the casing, and through it passed to the surface without contact with the coal bed. Should gas be found between two workable beds of coal, in a hole, of the same diameter from bed to bed, two packers shall be placed, with perforations in the casing between them, permitting the gas to pass to the surface inside the adjacent casing. In either of the cases here specified, the strings of casing shall extend from their seats to the top of the well.

§22-6-19. Same -- Continuance during life of well; dry or abandoned wells.

    In the event that a well becomes productive of natural gas or petroleum or is drilled for or converted for the introduction of pressure, whether liquid or gas, or for the introduction of liquid for the purposes provided for in section twenty-five of this article or for the disposal of pollutants or the effluent therefrom, all coal-protecting strings of casing and all water-protecting strings of casing shall remain in place until the well is plugged or abandoned. During the life of the well the annular spaces between the various strings of casing adjacent to workable beds of coal shall be kept open, and the top ends of all such strings shall be provided with casing heads or such other suitable devices as that will permit the free passage of gas and prevent filling of such the annular spaces with dirt or debris.

    Any 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 director secretary that there is a bona fide future use for such the well.

§22-6-20. Same -- When well is drilled through horizon of coalbed from which coal has been removed.

    When a 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 beneath the horizon of the coalbed and extend 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: Provided, That the liner may extend back to the surface and serve as the freshwater or coal protection casing, if done in accordance with sections eighteen and twenty-one of this article, as applicable. If the liner is constructed in this manner, the next string of casing to be run into the well shall extend at least twenty feet below the coalbed. Cement shall be placed between that string of casing and the liner from the bottom of the casing to a point at least twenty feet above the coalbed. 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, the liner shall be started not less than twenty feet below the lowest horizon penetrated and shall extend to a point not less than twenty feet above the highest horizon.

§22-6-21. Same -- Installation of fresh water casings.

    (a) When a permit has been issued for the drilling of an oil or gas well or both, each well operator shall run and permanently cement a string of casing in the hole through the fresh water bearing strata in such a manner and to the extent provided for in rules promulgated by the director secretary in accordance with the provisions of this chapter.

    (b) No oil or gas well shall be drilled nearer than two hundred feet from an existing water well or occupied dwelling without first obtaining the written consent of the owner of such water well or occupied dwelling or near surface water of the state that is less than one hundred feet downgradient from the oil or gas well.

§22-6-22. Well report, logs, core samples and cuttings to be filed; confidentiality and permitted use; authority to promulgate rules.

    (a) Within a reasonable time after the completion of the drilling of a shallow well or deep well, the well operator shall file with the secretary and with the state Geological and Economic Survey a completion report containing the following:

    (1) The character, depth and thickness of geological formations encountered, including fresh water, coal seams, mineral beds, brine and oil and gas bearing formations; and

    (2) Such Any other information as the secretary may require to effectuate the purposes of this chapter.

    The secretary may promulgate such reasonable rules in accordance with article three, chapter twenty-nine-a of this code, as that may be considered necessary to ensure that the character, depth and thickness of geological formations encountered are accurately logged: Provided, That the secretary shall not require logging by the use of an electrical logging device: Provided, however, That if electrical or mechanical or geophysical logs are recorded in the well, the secretary may request copies of these logs: Provided further, That mechanical or geophysical logs may not include vertical seismic profiles or two-dimensional or three-dimensional seismic information.

    (b) If a well operator takes core samples, that activity shall be noted within the report, and, within sixty days after filing the completion report, the operator shall, subject to the terms of this article, provide the state Geological and Economic Survey with a complete set of cores, consisting of at least quarter slabs, correctly labeled and identified according to depth. The core samples requested by and provided to the state Geological and Economic Survey may not contain any materials or documents made with regard to analyzing or interpreting the core samples.

    (c) If a well operator catches cuttings during the drilling of any deep or shallow well, that activity shall be noted within the report and, within sixty days after filing the completion report, the operator shall, subject to the terms of this article, provide the state Geological and Economic Survey with a sample of the cuttings, correctly labeled and identified according to depth.

    (d) Any information, reports, cuttings and core samples requested by and provided to the state Geological and Economic Survey by the operator shall be kept confidential at the written request of the operator for a specified amount of time as follows:

    (1) Except for core samples, any logs, drill cuttings, reports and other information or materials that reveal trade secrets or other confidential business information relating to the competitive interests of the operator or the operator’s privy may not be disclosed to the public for one year following delivery, unless the operator consents in writing to a shorter time. At the operator’s written request, the period of confidentiality may be extended in annual increments: Provided, That the total period of confidentiality may not exceed three years.

    (2) Any core samples may not be disclosed to the public for five years following delivery to the state Geological and Economic Survey, unless the operator consents in writing to a shorter time. At the operator’s written request, the period of confidentiality may be extended for an additional five years: Provided, That the total period of confidentiality may not exceed ten years.

    (e) Notwithstanding the provisions of subsection (d) of this section, the state Geological and Economic Survey may store and process confidential information within its minerals mapping or geographic information systems; however, that confidential information may not be revealed to the public until the lapsing of the period of confidentiality created pursuant to subsection (d) of this section. After the period of confidentiality has lapsed, statistics or other information generated as the result of storage and processing may be disclosed in the aggregate through articles, reports, maps, or lectures presented in accordance with generally accepted academic or scientific practices and in a manner to preclude the identification of a particular well or operator.

§22-6-23. Plugging, abandonment and reclamation of well; notice of intention; bonds; affidavit showing time and manner.

    All dry or abandoned wells or wells presumed to be abandoned under the provisions of section nineteen of this article shall be plugged and reclaimed in accordance with this section and the other provisions of this article and in accordance with the rules promulgated by the secretary.

    Prior to the commencement of plugging operations and the abandonment of any well, the well operator shall either: (a) Notify, by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation, the secretary and the coal operator operating coal seams, the coal seam owner of record or lessee of record, if any, to whom notices are required to be given by section twelve of this article, and the coal operators to whom notices are required to be given by section thirteen of this article, of its intention to plug and abandon any such well (using such the form of notice as the secretary may provide), giving the number of the well and its location and fixing the time at which the work of plugging and filling will be commenced, which time shall be not less than five days after the day on which such the notice so mailed is received or in due course should be received by the secretary, in order that a representative or representatives of the secretary and such the coal operator, owner or lessee, if any, may be present at the plugging and filling of the well: Provided, That whether such any representatives appear or do not appear, the well operator may proceed at the time fixed to plug and fill the well in the manner hereinafter described; or (b) First obtain the written approval of the secretary and such the coal operator, owner or lessee, if any; or (c) In the event the well to be plugged and abandoned is one on which drilling or reworking operations have been continuously progressing pursuant to authorization granted by the secretary, first obtain the verbal permission of the secretary or the secretary’s designated representative to plug and abandon the well, except that the well operator shall, within a reasonable period not to exceed five days after the commencement of the plugging operations, give the written notices required by subdivision (a) above.

    The well operator shall not be required to prepare or submit to the director secretary a plat prior to the commencement of plugging operations as long as a plat pertaining to the particular well is on file with the director secretary and accurately identifies the location of the well, or so long as there is also on file with the director secretary the coordinates of the well established by a global positioning system. The coordinates established by a global positioning system must be filed with the secretary in either a written or electronic form prescribed by the secretary. The global positioning system used to establish the coordinates shall be accurate within the variance allowed by law for the distance between the actual location of the well and location shown on the plat that is required to be filed with a well permit application, or the secretary may establish the accuracy of the global positioning system by legislative rule promulgated pursuant to section two of this article.

    No well may be plugged or abandoned unless prior to the commencement of plugging operations and the abandonment of any well the secretary is furnished a bond as provided in section twenty-six of this article. In no event prior to the commencement of plugging operations shall a lessee under a lease covering a well be required to give or sell the well to any person owning an interest in the well, including, but not limited to, the respective lessor, or agent of the lessor, nor may the lessee be required to grant a person with an interest in the well, including, but not limited to, the respective lessor, or agent of the lessor, an opportunity to qualify under section twenty-six of this article to continue operation of the well.

    When the plugging, filling and reclamation of a well have been completed, an affidavit, in triplicate, shall be made (on a form to be furnished by the secretary) by two experienced persons who participated in the work, the secretary or the secretary’s designated representative, in which affidavit shall be set forth the time and manner in which the well was plugged and filled and the land reclaimed. One copy of this affidavit shall be retained by the well operator, another (or true copies of same) shall be mailed to the coal operator or operators, if any, and the third to the secretary.

§22-6-24. Methods of plugging well.

    Upon the abandonment or cessation of the operation of any well drilled for natural gas or petroleum, or drilled or converted for the introduction of pressure, whether liquid or gas, or for the introduction of liquid for the purposes provided for in section twenty-five of this article or for the disposal of pollutants or the effluent therefrom, the well operator, at the time of such abandonment or cessation, shall fill and plug the well in the following manner:

    (a) Where the well does not penetrate workable coal beds, it shall either be filled with mud, clay or other nonporous material from the bottom of the well to a point twenty feet above the top of its lowest oil, gas or water-bearing stratum; or a permanent bridge shall be anchored thirty feet below its lowest oil, gas or water-bearing stratum, and from such bridge it shall be filled with mud, clay or other nonporous material to a point twenty feet above such stratum. at At this point there shall be placed a plug of cement or other suitable material which will completely seal the hole. Between this sealing plug and a point twenty feet above the next higher oil, gas or water-bearing stratum, the hole shall be filled in the manner just described; and at such point there shall be placed another plug of cement or other suitable material which will completely seal the hole. In like manner the hole shall be filled and plugged with reference to each of its oil, gas or water-bearing strata. However, whenever such the strata are not widely separated and are free from water, they may be grouped and treated as a single sand, gas or petroleum horizon, and the aforesaid filling and plugging shall be performed as though there were but one horizon. After the plugging of all oil, gas or water-bearing strata, as aforesaid, a final cement plug shall be placed approximately ten feet below the bottom of the largest casing in the well and from this point to the surface the well shall be filled with mud, clay or other nonporous material. In case any of the oil or gas-bearing strata in a well shall have been shot, thereby creating cavities which cannot readily be filled in the manner above described, the well operator shall follow either of the following methods:

    (1) Should the stratum which has been shot be the lowest one in the well, there shall be placed, at the nearest suitable point, but not less than twenty feet above the stratum, a plug of cement or other suitable material which will completely seal the hole. In the event, however, that the shooting has been done above one or more oil or gas-bearing strata in the well, plugging in the manner specified shall be done at the nearest suitable point, but not less than twenty feet below and above the stratum shot; or

    (2) When such cavity shall be is in the lowest oil or gas-bearing stratum in the well, a liner shall be placed which shall extend from below the stratum to a suitable point, but not less than twenty feet above the stratum in which shooting has been done. In the event, however, that the shooting has been done above one or more oil or gas-bearing strata in the well, the liner shall be so placed that it will extend not less than twenty feet above nor less than twenty feet below the stratum in which shooting has been done. Following the placing of the liner in the manner here specified it shall be compactly filled with cement, mud, clay or other nonporous sealing material.

    (b) Where the well penetrates one or more workable coal beds and a coal protection string of casing has been circulated and cemented into the surface, the well shall be filled and securely plugged in the manner provided in subsection (a) of this section, except that expanding cement shall be used instead of regular hydraulic cement, to a point approximately one hundred feet below the bottom of the coal protection string of casing. A one hundred foot plug of expanding cement shall then be placed in the well so that the top of such the plug is located at a point just below the coal protection string of casing. After such the plug has been securely placed in the well, the coal protection string of casing shall be emptied of liquid from the surface to a point one hundred feet below the lowest workable coal bed or to the bottom of the coal protection string of casing, whichever is shallower. A vent or other device approved by the director secretary shall then be installed on the top of the coal protection string of casing in such a manner that will prevent liquids and solids from entering the well but will permit ready access to the full internal diameter of the coal protection string of casing when required. The coal protection string of casing and the vent or other device approved by the director secretary shall extend, when finally in place, a distance of not less than thirty inches above ground level and shall be permanently marked with the well number assigned by the director secretary;

    (c) Where the well penetrates one or more workable coal beds and a coal protection string of casing has not been circulated and cemented in to the surface, the well shall be filled and securely plugged in the manner provided in subsection (a) of this section to a point fifty feet below the lowest workable coal bed. Thereafter, a plug of cement shall be placed in the well at a point not less than forty feet below the lowest workable coal bed. After the cement plug has been securely placed in the well, the well shall be filled with cement to a point twenty feet above the lowest workable coal bed. From this point the well shall be filled with mud, clay or other nonporous material to a point forty feet beneath the next overlying workable coal bed, if such there be any, and the well shall then be filled with cement from this point to a point twenty feet above such the workable coal bed, and similarly in case if there are more overlying workable coal beds. After the filling and plugging of the well to a point above the highest workable coal bed, filling and plugging of the well shall continue in the manner provided in subsection (a) of this section to a point fifty feet below the surface, and a plug of cement shall be installed from the point fifty feet below the surface to the surface with a monument installed therein extending thirty inches above ground level;

    (d) (1) Where the well penetrates one or more workable coal beds and a coal protection string of casing has not been circulated and cemented in to the surface, a coal operator or coal seam owner may request that the well be plugged in the manner provided in subdivision (3) of this subsection rather than by the method provided in subsection (c) of this section. Such request (forms for which shall be provided by the director secretary) must be filed in writing with the director secretary prior to the scheduled plugging of the well, and must include the number of the well to be plugged and the name and address of the well operator. At the time such the request is filed with the director secretary, a copy of such request it must also be mailed by registered or certified mail or any method of delivery that requires a receipt or signature confirmation to the well operator named in the request.

    (2) Upon receipt of such the request, the director secretary shall issue an order staying the plugging of the well and shall promptly determine the cost of plugging the well in the manner provided in subdivision (3) of this subsection and the cost of plugging the well in the manner provided in subsection (c) of this section. In making such that determination, the director secretary shall take into consideration any agreement previously made between the well operator and the coal operator or coal seam owner making the request. If the director secretary determines that the cost of plugging the well in the manner provided in subsection (c) of this section exceeds the cost of plugging the well in the manner provided in subdivision (3) of this subsection, the director secretary shall grant the request of the coal operator or owner and shall issue an order requiring the well operator to plug the well in the manner provided in subdivision (3) of this subsection. If the director secretary determines that the cost of plugging the well in the manner provided in subsection (c) of this section is less than the cost of plugging the well in the manner provided in subdivision (3) of this subsection, the director secretary shall request payment into escrow of the difference between the determined costs by the coal operator or coal seam owner making the request. Upon receipt of satisfactory notice of such the payment or upon receipt of notice that the well operator has waived such the payment, the director secretary shall grant the request of the coal operator or coal seam owner and shall issue an order requiring the well operator to plug the well in the manner provided in subdivision (3) of this subsection. If satisfactory notice of payment into escrow or notice that the well operator has waived such payment is not received by the director secretary within fifteen days after the request for payment into escrow, the director secretary shall issue an order permitting the plugging of the well in the manner provided in subsection (c) of this section. Copies of all orders issued by the director secretary shall be sent by registered or certified mail or any method of delivery that requires a receipt or signature confirmation to the coal operator or coal seam owner making the request and to the well operator. When the escrow agent has received certification from the director secretary of the satisfactory completion of the plugging work and the reimbursable extra cost thereof (that is, the difference between the director's secretary’s determination of plugging cost in the manner provided in subsection (c) of this section and the well operator's actual plugging cost in the manner provided in subdivision (3) of this subsection), the escrow agent shall pay the reimbursable sum to the well operator or the well operator's nominee from the payment into escrow to the extent available. The amount by which the payment into escrow exceeds the reimbursable sum plus the escrow agent's fee, if any, shall be repaid to the coal owner. If the amount paid to the well operator or the well operator's nominee is less than the actual reimbursable sum, the escrow agent shall inform the coal owner, who shall pay the deficiency to the well operator or the well operator's nominee within thirty days. If the coal operator breaches this duty to pay the deficiency, the well operator shall have a right of action and be entitled to recover damages as if for wrongful conversion of personalty and reasonable attorney fees.

    (3) Where a request of a coal operator or coal seam owner filed pursuant to subdivision (1) of this subsection has been granted by the director secretary, the well shall be plugged in the manner provided in subsection (a) of this section, except that expanding cement shall be used instead of regular hydraulic cement, to a point approximately two hundred feet below the lowest workable coal bed. A one hundred foot plug of expanding cement shall then be placed in the well beginning at the point approximately two hundred feet below the lowest workable coal bed and extending to a point approximately one hundred feet below the lowest workable coal bed. A string of casing with an outside diameter no less than four and one-half inches shall then be run into the well to a point approximately one hundred feet below the lowest workable coal bed and such the string of casing shall be circulated and cemented in to the surface. The casing shall then be emptied of liquid from a point approximately one hundred feet below the lowest workable coal bed to the surface, and a vent or other device approved by the director secretary shall be installed on the top of the string of casing in such a manner that it will prevent liquids and solids from entering the well but will permit ready access to the full internal diameter of the coal protection string of casing when required. The string of casing and the vent or other device approved by the director secretary shall extend, when finally in place, a distance of no less than thirty inches above ground level and shall be permanently marked with the well number assigned by the director secretary. Notwithstanding the foregoing provisions of this subdivision, if under particular circumstances a different method of plugging is required to obtain the approval of another governmental agency for the safe mining through of said well, the director secretary may approve such a different method of plugging if the director secretary finds the same it to be as safe for mining through and otherwise adequate to prevent gas or other fluid migration from the oil and gas reservoirs as the method above specified.

    (e) Where the well penetrates one or more workable coal beds, a coal operator or coal seam owner or lessee may request that the well be plugged in a manner that meets federal Miners Safety and Health Administration (MSHA) requirements for mining through the well. Any such request shall be submitted and addressed as provided in subparagraph (d) of this section.

    (e) (f) Any person may apply to the director secretary for an order to clean out and replug a previously plugged well in a manner which will permit the safe mining through of such the well. Such The application shall be filed with the director secretary and shall contain the well number, a general description of the well location, the name and address of the owner of the surface land upon which the well is located, a copy of or record reference to a deed, lease or other document which entitles the applicant to enter upon the surface land, a description of the methods by which the well was previously plugged, and a description of the method by which such the applicant proposes to clean out and replug the well. At the time an application is filed with the director secretary, a copy shall be mailed by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation to the owner or owners of the land, and the oil and gas lessee of record, if any, of the site upon which the well is located. If no objection to the replugging of the well is filed by any such relevant landowner or oil and gas lessee within thirty days after the filing of the application, and if the director secretary determines that the method proposed for replugging the well will permit the safe mining through of such well, the director secretary shall grant the application by an order authorizing the replugging of the well. Such order shall specify the method by which the well shall be replugged, and copies thereof shall be mailed by certified or registered mail or by any method of delivery that requires a receipt or signature confirmation to the applicant and to the owner or owners of the land, and to the oil and gas lessee, if any, of the site upon which such the well is located. If any such relevant landowner or oil and gas lessee objects to the replugging of the well, the director secretary shall notify the applicant of such the objection. Thereafter, the director secretary shall schedule a hearing to consider the objection, which hearing shall be held after notice by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation to the objectors and the applicant. After consideration of the evidence presented at the hearing, the director secretary shall issue an order authorizing the replugging of the well if the director secretary determines that replugging of the well will permit the safe mining through of such the well. Such The order shall specify the manner in which the well shall be replugged and copies thereof shall be sent by registered or certified mail or by any method of delivery that requires a receipt or signature confirmation to the applicant and objectors. The director secretary shall issue an order rejecting the application if the director secretary determines that the proposed method for replugging the well will not permit the safe mining through of such the well;

    (f) (g) All persons adversely affected by a determination or order of the director secretary issued pursuant to the provisions of this section shall be entitled to judicial review in accordance with the provisions of articles five and six, chapter twenty-nine-a of this code.

§22-6-25. Introducing liquid pressure into producing strata to recover oil contained therein.

    The owner or operator of any well or wells which produce oil or gas may allow such the well or wells to remain open for the purpose of introducing water or other liquid pressure into and upon the producing strata for the purpose of recovering the oil contained therein and may drill additional wells for like purposes, Provided That the introduction of such water or other liquid pressure shall be controlled as to volume and pressure and shall be through casing or tubing which shall be so anchored and packed that no water-bearing strata or other oil or gas-bearing sand or producing stratum above or below the producing strata into and upon which such the pressure is introduced shall be affected thereby, fulfilling requirements as set forth under in section fourteen.

§22-6-26. Performance bonds; corporate surety or other security.

    (a) No permit shall be issued pursuant to this article unless a bond as described in subsection (d) of this section which is required for a particular activity by this article is or has been furnished as provided in this section.

    (b) A separate bond as described in subsection (d) of this section may be furnished for a particular oil or gas well or for a particular well for the introduction of liquids for the purposes provided in section twenty-five of this article. A separate bond as described in subsection (d) of this section shall be furnished for each well drilled or converted for the introduction of liquids for the disposal of pollutants or the effluent therefrom. Each of these bonds shall be in the sum of five thousand dollars, $5,000 payable to the State of West Virginia, conditioned on full compliance with all laws, rules relating to the drilling, redrilling, deepening, casing, and stimulating of oil and gas wells (or, if applicable, with all laws, rules relating to drilling or converting wells for the introduction of liquids for the purposes provided in section twenty-five of this article or for the introduction of liquids for the disposal of pollutants or the effluent therefrom) and to the plugging, abandonment, and reclamation of wells and for furnishing such reports and information as may be required by the director secretary.

    (c) When an operator makes or has made application for permits to drill or stimulate a number of oil and gas wells or to drill or convert a number of wells for the introduction of liquids for the purposes provided in section twenty-five of this article, the operator may, in lieu of furnishing a separate bond, furnish a blanket bond in the sum of fifty thousand dollars, $50,000 payable to the State of West Virginia and conditioned as aforesaid in subsection (b) of this section.

    (d) The form of the bond required by this article shall be approved by the director secretary and may include, at the option of the operator, surety bonding, collateral bonding (including cash and securities) letters of credit, establishment of an escrow account, self-bonding or a combination of these methods. If collateral bonding is used, the operator may elect to deposit cash, or collateral securities or certificates as follows: Bonds of the United States or its possessions, of the federal land bank or of the homeowners' loan corporation; full faith and credit general obligation bonds of the State of West Virginia or other states and or of any county, district or municipality of the State of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in favor of the division department. The cash deposit or market value of such the securities or certificates shall be equal to or greater than the amount of the bond. The director secretary shall, upon receipt of any such deposit of cash, securities or certificates, promptly place the same with the Treasurer of the State of West Virginia whose duty it shall be to receive and hold the same in the name of the state in trust for the purpose of which the deposit is made when the permit is issued. The operator shall be entitled to all interest and income earned on the collateral securities filed by such operator. The operator making the deposit shall be entitled from time to time to receive from the State Treasurer, upon the written approval of the director secretary, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with the State Treasurer in lieu thereof cash or other securities or certificates of the classes herein specified having value equal to or greater than the amount of the bond.

    (e) When an operator has furnished a separate bond from a corporate bonding or surety company to drill, fracture or stimulate an oil or gas well and the well produces oil or gas or both, its operator may deposit with the director secretary cash from the sale of the oil or gas or both until the total deposited is $5,000. When the sum of the cash deposited is $5,000, the separate bond for the well shall be released by the director secretary. Upon receipt of such that cash, the director secretary shall immediately deliver the same it to the Treasurer of the State of West Virginia. The State Treasurer shall hold such the cash in the name of the state in trust for the purpose for which the bond was furnished and the deposit was made. The operator shall be entitled to all interest and income which may be earned on the cash deposited so long as the operator is in full compliance with all laws and rules relating to the drilling, redrilling, deepening, casing, plugging, abandonment, and reclamation of the well for which the cash was deposited and so long as the operator has furnished all reports and information as may be required by the director secretary. If the cash realized from the sale of oil or gas or both from the well is not sufficient for the operator to deposit with the director secretary the sum of $10,000 within one year of the day the well started producing, the corporate or surety company which issued the bond on the well may notify the operator and the director secretary of its intent to terminate its liability under its bond. The operator then shall have thirty days to furnish a new bond from a corporate bonding or surety company or collateral securities or other forms of security, as provided in the next preceding paragraph of this section with the director secretary. If a new bond or collateral securities or other forms of security are furnished by the operator, the liability of the corporate bonding or surety company under the original bond shall terminate as to any acts and operations of the operator occurring after the effective date of the new bond or the date the collateral securities or other forms of security are accepted by the Treasurer of the State of West Virginia. If the operator does not furnish a new bond or collateral securities or other forms of security with the secretary, as provided in the next preceding paragraph of this section, with the director, the operator shall immediately plug, fill and reclaim the well in accordance with all of the provisions of law and rules applicable thereto. In such case, the corporate or surety company which issued the original bond shall be liable for any plugging, filling or reclamation not performed in accordance with such laws and rules.

    (f) Any separate bond furnished for a particular well prior to the effective date of this chapter shall continue to be valid for all work on the well permitting permitted prior to the July 11, 1985; but no permit shall hereafter be issued on such a particular well without a bond complying with the provisions of this section. Any blanket bond furnished prior to July 11, 1985 shall be replaced with a new blanket bond conforming to the requirements of this section, at which time the prior bond shall be discharged by operation of law; and if the director secretary determines that any operator has not furnished a new blanket bond, the director secretary shall notify the operator by certified mail, return receipt requested registered or certified mail or by any method of delivery that requires a receipt or signature confirmation of the requirement for a new blanket bond, and failure to submit a new blanket bond within sixty days after receipt of the notice from the director secretary shall work a forfeiture under subsection (i) of this section of the blanket bond furnished prior to July 11, 1985.

    (g) Any such bond shall remain in force until released by the director secretary, and the director secretary shall release the same upon satisfaction that the conditions thereof have been fully performed. Upon the release of any such bond, any cash or collateral securities deposited shall be returned by the director secretary to the operator who deposited same it.

    (h) Whenever the right to operate a well is assigned or otherwise transferred, the assignor or transferor shall notify the department of the name and address of the assignee or transferee by certified mail, return receipt requested registered or certified mail or by any method of delivery that requires a receipt or signature confirmation not later than five days after the date of the assignment or transfer. No assignment or transfer by the owner shall relieve the assignor or transferor of the obligations and liabilities unless and until the assignee or transferee files with the department the well name and the permit number of the subject well, the county and district in which the subject well is located, the names and addresses of the assignor or transferor, and assignee or transferee, a copy of the instrument of assignment or transfer accompanied by the applicable bond, cash, collateral security or other forms of security described in section twelve, fourteen, twenty-three or twenty-six of this article, and the name and address of the assignee's or transferee's designated agent if assignee or transferee would be required to designate such an agent under section six three of this article, if assignee or transferee were an applicant for a permit under said section six three. Every well operator required to designate an agent under this section shall, within five days after the termination of such designation, notify the department of such termination and designate a new agent.

    Upon compliance with the requirements of this section by assignor or transferor and assignee or transferee, the director secretary shall release assignor or transferor from all duties and requirements of this article and the deputy director shall give written notice of release unto assignor or transferor of any bond and return unto assignor or transferor any cash or collateral securities deposited pursuant to section twelve, fourteen, twenty-three or twenty-six of this article.

    (i) If any of the requirements of this article or rules promulgated pursuant thereto or the orders of the director secretary have not been complied with within the time limit set by the violation notice as defined in sections three, four and five eleven, twenty-eight or thirty-four of this article, the performance bond shall then be forfeited.

    (j) When any bond is forfeited pursuant to the provisions of this article or rules promulgated pursuant thereto, the director secretary shall give notice to the Attorney General who shall collect the forfeiture without delay.

    (k) All forfeitures shall be deposited in the Treasury of the State of West Virginia in the special Oil and Gas Reclamation Fund as defined in section twenty-nine of this article.

§22-6-27. Cause of action for damages caused by explosions.

    Any person suffering personal injury or property damage due to any explosion caused by any permittee, operator shall have a cause of action against such permittee the operator for three years after the explosion, regardless of when the explosion occurred.

§22-6-28. Supervision by director over drilling and reclamation operations; complaints; hearings; appeals.

    (a) The director shall exercise supervision over the drilling, casing, plugging, filling and reclamation of all wells and shall have such access to the plans, maps and other records and to the properties of the well operators as may be necessary or proper for this purpose, and, either as the result of its own investigations or pursuant to charges made by any well operator or coal operator, the director may enter, or shall permit any aggrieved person to file before the director, a formal complaint charging any well operator with not drilling or casing, or not plugging or filling, or reclaiming any well in accordance with the provisions of this article, or to the order of the director. True copies of any such complaints shall be served upon or mailed by registered mail to any person so charged, with notice of the time and place of hearing, of which the operator or operators so charged shall be given at least five days' notice. At the time and place fixed for hearing, full opportunity shall be given any person so charged or complaining to be heard and to offer such evidence as desired, and after a full hearing, at which the director may offer in evidence the results of such investigations as the director may have made, the director shall make findings of fact and enter such order as in the director's judgment is just and right and necessary to secure the proper administration of this article, and if the director deems necessary, restraining the well operator from continuing to drill or case any well or from further plugging, filling or reclaiming the same, except under such conditions as the director may impose in order to ensure a strict compliance with the provisions of this article relating to such matters.

    (b) Except as provided in subsection (c) of this section, any well operator or coal operator adversely affected by a final decision or order of the director, may appeal in the manner prescribed in section four, article five, chapter twenty-nine-a of this code.

    (c) Any person having an interest which is or may be adversely affected, or who is aggrieved by an order of the director, or by the issuance or denial of a permit, or by the permit's terms and conditions, where the subject to such order, permits or terms and conditions is solid waste, may appeal to the environmental quality board in the same manner as appeals are taken under the solid waste management act, section sixteen, article fifteen of this chapter. For the purpose of this subsection the term solid waste has the same meaning as would be given that term pursuant to section two, article fifteen of this chapter but for the exemption related to waste or material regulated by this chapter, chapter twenty-two-b or chapter twenty-two-c of this code.

§22-6-28. Notice of violation; procedure and actions; enforcement; permit revocation and bond forfeiture; civil and criminal penalties; appeals; prosecution; injunctive relief.

    (a) If an owner or operator has not complied with any of the requirements of this article or article eleven of this chapter, rules promulgated pursuant thereto or permit conditions, the secretary shall cause a notice of violation to be served upon the operator or the operator’s duly authorized agent as notices are served pursuant to the provisions the West Virginia Rules of Civil Procedure to the permanent address shown on the application for the permit. The notice shall specify in what respects the operator has failed to comply with this article or article eleven of this chapter, rules or permit conditions and shall specify a reasonable time for abatement of the violation not to exceed seven days. If the operator has not abated the violation within the time specified in the notice, or any reasonable extension thereof not to exceed thirty days, the secretary may order the cessation of the operation, unless the operator affirmatively demonstrates that compliance is unattainable due to conditions totally beyond the control of the operator. If a violation is not abated within the time specified or any extension thereof, or if any cessation order is issued, a mandatory civil penalty of up to $10,000 per day per violation shall be assessed. A cessation order remains in effect until the secretary determines that the violation has been abated or until modified, vacated or terminated by the secretary or by a court. In any cessation order issued pursuant to this subsection, the secretary shall determine the steps necessary to abate the violation in the most expeditious manner possible and shall include the necessary measures in the order.

    (b) If the secretary determines that a pattern of violations of any requirement of this article or article eleven of this chapter or any permit condition exists or has existed as a result of the operator's lack of reasonable care and diligence, or that the violations are willfully caused by the operator, the secretary shall immediately issue an order directing the operator to show cause why the operation should not be suspended or revoked and giving the operator thirty days in which to request a hearing. If a hearing is requested, the secretary shall inform all interested parties of the time and place of the hearing. Any hearing conducted pursuant to this section shall be recorded and is subject to the provisions of chapter twenty-nine-a of this code. Within sixty days following the hearing, the secretary shall issue and furnish to the operator and all other parties to the hearing a written decision, and the reasons therefor, concerning suspension or revocation of the operation. Upon the operator's failure to show cause why the right to operate should not be suspended or revoked, the secretary shall immediately suspend or revoke the operator's right to operate the well(s) at issue. If the right to operate is revoked, the secretary shall initiate procedures in accordance with rules promulgated by the secretary to forfeit the entire amount of the operator's bond or other security posted pursuant to section twenty-six of this article, and collect the forfeiture without delay: Provided, That the entire proceeds of such forfeiture shall be deposited with the State Treasurer to the credit of the Oil and Gas Reclamation Fund; Provided, however, That any excess therefrom shall remain in the Oil and Gas Reclamation Fund.

    (c) Any operator who violates any permit condition or who violates any other provision of this article or article eleven of this chapter or the rules promulgated pursuant thereto may also be assessed a civil penalty. The penalty may not exceed $10,000. Each day of continuing violation may be deemed a separate violation for purposes of penalty assessments. In determining the amount of the penalty, consideration shall be given to the operator's history of previous violations; the seriousness of the violation, including any irreparable or significant harm to the environment and any hazard to the health or safety of the public; whether the operator was negligent; and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of the violation.

    (d) (1) Upon the issuance of a notice or order pursuant to this section, the assessment officer shall, within thirty days, set a proposed penalty assessment, if any, and notify the operator in writing of such proposed penalty assessment. Any proposed penalty assessment must be paid in full within thirty days of receipt or, if the operator wishes to contest either the amount of the penalty or the fact of violation, it may request an informal conference with the assessment officer within fifteen days or a formal hearing before the secretary within thirty days. The notice of proposed penalty assessment shall advise the operator of the right to an informal conference and a formal hearing pursuant to this section. When the operator requests an informal conference, it has fifteen days from receipt of the assessment officer's decision to request a formal hearing before the secretary.

    (A) When an informal conference is held, the assessment officer has authority to affirm, modify or vacate the notice, order or proposed penalty assessment.

    (B) When a formal hearing is requested, the amount of the proposed penalty assessment shall be forwarded to the secretary for placement in an escrow account. Formal hearings shall be of record and subject to the provisions of article five, chapter twenty-nine-a of this code. Following the hearing, the order or proposed penalty assessment shall be affirmed, modified or vacated and, when appropriate, shall incorporate an assessment order requiring that the assessment be paid.

    (2) Civil penalties owed pursuant to this section may be recovered by the secretary in the circuit court of Kanawha County. In any such action, the state, or any agency of the state that prevails, may be awarded costs and reasonable attorney’s fees. Civil penalties collected pursuant to this article shall be deposited with the State Treasurer to the credit of the Oil and Gas Operating Permit and Processing Fund established in section twenty-nine of this article. If, through administrative or judicial review of the proposed penalty, it is determined that no violation occurred or that the amount of the penalty should be reduced, the secretary shall, within thirty days, remit the appropriate amount to the person, with interest at the rate of six percent or at the prevailing United States Department of the Treasury rate, whichever is greater. Failure to forward the money to the secretary within thirty days is a waiver of all legal rights to contest the violation or the amount of the penalty.

    (e) Any operator whose interest is or may be adversely affected by any order of the secretary may file an appeal in accordance with the provisions of article five, chapter twenty-nine-a of this code, within thirty days after receipt of the order.

    (f) The filing of an appeal or a request for an informal conference or formal hearing provided for in this section does not stay execution of the order appealed from. Pending completion of the investigation and conference or hearing required by this section, the operator may file with the secretary a written request that the secretary grant temporary relief from any notice or order issued under this section or sections eleven, twenty-eight or thirty-four of this article, together with a detailed statement giving reasons for granting such relief. The secretary shall issue an order or decision granting or denying such relief expeditiously: Provided, That where the operator requests relief from a cessation order, the decision on the request shall be issued within five days of its receipt. The secretary may grant such relief under such conditions as he or she may prescribe if:

    (1) All parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief;

    (2) The person requesting the relief shows that there is a substantial likelihood that he will prevail on the merits in the final determination of the proceedings;

    (3) The relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air or water resources; and

    (4) The relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the secretary.

    (g) Any person who willfully and knowingly violates a condition of a permit issued pursuant to this article or article eleven of this chapter or rules promulgated pursuant thereunder, or fails or refuses to comply with any order issued under those articles and rules or any order incorporated in a final decision issued by the secretary, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $5,000 nor more than $10,000 or imprisoned in the county jail not more than one year or both fined and imprisoned.

    (h) Whenever a corporate operator violates a condition of a permit issued pursuant to this article, rules promulgated pursuant thereto, or any order incorporated in a final decision issued by the secretary, any director, officer or agent of the corporation who willfully and knowingly authorized, ordered or carried out the failure or refusal is subject to the same civil penalties, fines and imprisonment that may be imposed upon a person pursuant to subsections (c) and (g) of this section.

    (i) Any person who knowingly makes any false statement, representation or certification or knowingly fails to make any statement, representation or certification in any application, petition, record, report, plan or other document filed or required to be maintained pursuant to this article or rules promulgated pursuant thereto is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $5,000 nor more than $10,000 or imprisoned in the county jail not more than one year or both fined and imprisoned.

    (j) Whenever any person: (A) violates or fails or refuses to comply with any order or decision issued by the secretary pursuant to this article; or (B) interferes with, hinders or delays the secretary in carrying out the provisions of this article; or (C) refuses to admit the secretary to the property where the well or its associated activities are located; or (D) refuses to permit inspection of the operation by the secretary; or (E) refuses to furnish any reasonable information or report requested by the secretary in furtherance of the provisions of this article; or (F) refuses to permit access to, and copying of, such records as the secretary determines necessary in carrying out the provisions of this article; or (G) violates any other provisions of this article, the rules promulgated pursuant thereto or the terms and conditions of any permit, the secretary or the prosecuting attorney of the county in which the permit area is located may institute a civil action for relief, including a permanent or temporary injunction, restraining order or any other appropriate order in the circuit court of Kanawha County or any court of competent jurisdiction to compel compliance with and enjoin such violations, failures or refusals. The court or the judge thereof in vacation may issue a preliminary injunction in any case pending a decision on the merits of any application filed without requiring the filing of a bond or other equivalent security.

    (k) Any person who, except as permitted by law, willfully resists, prevents, impedes or interferes with the secretary or any of his or her agents in the performance of their duties pursuant to this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $5,000 or by imprisonment for not more than one year or both.

§22-6-29. Operating permit and processing fund; special reclamation fund; fees.

    (a) There is hereby continued within the Treasury of the State of West Virginia the special fund known as the Oil and Gas Operating Permit and Processing Fund, and the secretary shall deposit with the State Treasurer to the credit of such that special fund all fees collected under pursuant to the provisions of subdivision ten, subsection (c), section two of this article.

    (1) The Oil and Gas Operating Permit and Processing Fund shall be administered by the secretary for the purposes of carrying out the provisions of this chapter.

    (2) The secretary shall make an annual report to the Governor and to the Legislature on the use of the fund and shall make a detailed accounting of all expenditures from the Oil and Gas Operating Permit and Processing Fund.

    (b) In addition to any other fees required by the provisions of this article, every applicant for a permit to drill a well shall, before the permit is issued, pay to the secretary a special reclamation fee of one hundred fifty dollars $150 for each activity for which a well work application is required to be filed: Provided, That a special reclamation fee shall not be assessed for plugging activities. Such The special reclamation fee shall be paid at the time the application for a drilling permit is filed with the secretary, and the payment of such the special reclamation fee shall be a condition precedent to the issuance of said permit.

    (c) There is hereby continued within the Treasury of the State of West Virginia the special fund known as the Oil and Gas Reclamation Fund, and the secretary shall deposit with the State Treasurer to the credit of such that special fund all special reclamation fees collected. The proceeds of any bond forfeited under the provisions of this article shall inure to the benefit of and shall be deposited in such Oil and Gas Reclamation Fund.

    (d) The Oil and Gas Reclamation Fund shall be administered by the secretary. The secretary shall cause to be prepared plans for the reclaiming and plugging of abandoned wells which have not been reclaimed or plugged or which have been improperly reclaimed or plugged. The secretary, as funds become available in the Oil and Gas Reclamation Fund, shall reclaim and properly plug wells in accordance with said those plans and specifications and in accordance with the provisions of this article relating to the reclaiming and plugging of wells and all rules promulgated thereunder. Such Those funds may also be utilized for the purchase of abandoned wells, where such purchase is necessary, and for the reclamation of such abandoned wells, and for any engineering, administrative, and research costs as may be necessary to properly effectuate the reclaiming and plugging of all wells, abandoned or otherwise.

    (e) The secretary may avail the division department of any federal funds provided on a matching basis that may be made available for the purpose of reclaiming or plugging any wells.

    (f) The secretary shall make an annual report to the Governor and to the Legislature setting forth the number of wells reclaimed or plugged through the use of the Oil and Gas Reclamation Fund provided for herein. Such The report shall identify each such reclamation and plugging project, state the number of wells reclaimed or plugged thereby, show the county wherein such wells are located, and shall make a detailed accounting of all expenditures from the Oil and Gas Reclamation Fund.

    (g) All wells shall be reclaimed or plugged by contract entered into by the secretary on a competitive bid basis as provided for under the provisions of article three, chapter five-a of this code and the rules promulgated thereunder.

§22-6-30. Reclamation requirements.

    The operator of a well shall reclaim the land surface within the area disturbed in siting, drilling, completing or producing the well in accordance with the following requirements:

    (a) Within six months after the completion of the drilling process, the operator shall fill all the pits and impoundments for containing muds, cuttings, salt water, and oil that are not needed for production purposes, or are not required or allowed by state or federal law or rule or agreement between the operator and the surface owner that allows the impoundment to remain open for the use and benefit of the surface owner (i.e. a farm pond as described in section five above) and remove all concrete bases, drilling supplies, and drilling equipment. Within such that period, the operator shall grade or terrace and plant, seed or sod the area disturbed that is not required in production of the well where necessary to bind the soil and prevent substantial erosion and sedimentation. No pit may be used for the ultimate disposal of salt water. Salt water and oil shall be periodically drained or removed and properly disposed of from any pit that is retained, so the pit is kept reasonably free of salt water and oil. Any impoundment that is intended to be left permanent shall meet the requirements set forth by the United States Department of Agriculture’s Natural Resources Conservation Service “Conservation Practice Standard - Ponds” (Code 378). No pits may be left permanent.

    (b) For multiple well pads, reclamation shall be completed within six months after the completion of the drilling process for a well, unless the operator commences drilling on a subsequent well within six months.

    (b) (c) Within six months after a well that has produced oil or gas is plugged or after the plugging of a dry hole, the operator shall remove all production and storage structures, supplies and equipment and any oil, salt water, and debris and fill any remaining excavations. Within such that period, the operator shall grade or terrace and plant, seed or sod the area disturbed where necessary to bind the soil and prevent substantial erosion and sedimentation.

    The director may, upon written application by an operator showing reasonable cause, extend the period within which reclamation shall be completed, but not to exceed a further six-month period.

    If the director refuses to approve a request for extension, the refusal shall be by order.

    (c) (d)(1) It shall be the duty of an the operator to commence the reclamation of the area of land disturbed in siting, drilling, completing or producing the well in accordance with soil erosion and sediment control plans approved by the director secretary or the director's designate secretary’s designee.

    (2) The secretary, upon written application by an operator showing reasonable cause, may extend the period within which reclamation shall be completed, but not to exceed a further six-month period.

    (3) If the secretary refuses to approve a request for extension, the refusal shall be by order.

    (d) (e) The director secretary shall promulgate rules setting forth requirements for the safe and efficient installation and burying of all production and gathering pipelines where practical and reasonable, except that such those rules shall not apply to those pipelines regulated by the Public Service Commission.

§22-6-31. Preventing waste of gas; plan of operation required

for wasting gas in process of producing oil; rejection thereof.

    Natural gas shall not be permitted to waste or escape from any well or pipeline, when it is reasonably possible to prevent such that waste, after the owner or operator of such the gas, or well, or pipeline has had a reasonable length of time to shut in such the gas in the well or make the necessary repairs to such the well or pipeline to prevent such waste: Provided, That (a) If, in the process of drilling a well for oil or gas, or both, gas is found in such the well and the owner or operator thereof desires to continue to search for oil or gas, or both, by drilling deeper in search of lower oil or gas-bearing strata, or (b) If it becomes necessary to make repairs to any well producing gas, commonly known as "cleaning out," and if in either event it is necessary for the gas in such the well to escape therefrom during the process of drilling or making repairs, as the case may be, then the owner or operator of such the well shall prosecute such the drilling or repairs with reasonable diligence so that the waste of gas from the well shall not continue longer than reasonably necessary, and if, during the progress of such the deeper drilling or repairs, any temporary suspension thereof becomes necessary, the owner or operator of such the well shall use all reasonable means to shut in the gas and prevent its waste during such the temporary suspension: Provided, however, That in all cases where both oil and gas are found and produced from the same oil and gas-bearing stratum, and where it is necessary for the gas therefrom to waste in the process of producing the oil, the owner or operator shall use all reasonable diligence to conserve and save from waste so much of such the gas as it is reasonably possible to save, but in no case shall such the gas from any well be wasted in the process of producing oil therefrom until the owner or operator of such the well shall have has filed with the director secretary a plan of operation for said the well showing, among other things, the gas-oil production ratio involved in such the operation, which plan shall govern the operation of said the well unless the director secretary shall, within ten days from the date on which such the plan is submitted to the director secretary, make a finding that such the plan fails, under all the facts and circumstances, to propose the exercise of all reasonable diligence to conserve and save from waste so much of such the gas as it is reasonably possible to save, in which event production of oil at such the well by the wasting of gas shall cease and desist until a plan of operation is approved by the director secretary. Successive plans of operation may be filed by the owner or operator of any such well with the director secretary.

§22-6-32. Right of adjacent owner or operator to prevent waste of gas; recovery of cost.

    (a) If the owner or operator of any such well shall neglect or refuse to drill, case and equip, or plug and abandon or shut in and conserve from waste the gas produced therefrom, as required to be done and performed by the preceding sections of this article, for a period of twenty days after a written notice so to do, which notice may be served personally upon the owner or operator or may be posted in a conspicuous place at or near the well, it shall be lawful for the owner or operator of any adjacent or neighboring lands or the director secretary to enter upon the premises where such the well is situated and properly case and equip such the well, or, in case the well is to be abandoned, to properly plug and abandon it, or, in case the well is wasting gas, to properly shut it in and make such any needed repairs to the well to prevent the waste of gas, in the manner required to be done by the preceding sections of this article. and the The reasonable cost and expense incurred by an owner or operator or the director secretary in so doing shall be paid by the owner or operator of such the well and may be recovered as debts of like amount are by law recoverable.

    (b) The director secretary may utilize funds and procedures established pursuant to section twenty-nine of this article for the purposes set out in the this section. Amounts recovered by the director secretary pursuant to this section shall be deposited in the Oil and Gas Reclamation Fund established pursuant to section twenty-nine of this article.

§22-6-33. Restraining waste.

    Aside from and in addition to the imposition of any penalties under this article, it shall be the duty of any circuit court in the exercise of its equity jurisdiction to hear and determine any action which may be filed to restrain the waste of natural gas in violation of this article, and to grant relief by injunction or by other decrees or orders, in accordance with the principles and practice in equity. The plaintiff in such that action shall have sufficient standing to maintain the same if the condition or practice exists or that any operator is in violation of any requirements of this article or any permit condition plaintiff shall aver and prove that the plaintiff is interested in the lands situated within the distance of one mile from such the well, either as an owner of such the land or of the oil or gas or both thereunder, in fee simple or as an owner of leases thereof or of rights therein for the production of oil and gas or either of them or as the director secretary.

§22-6-34. Offenses; penalties.

    (a) Any person or persons, firm, partnership, partnership association or corporation who willfully violates any provision of this article or any rule or order promulgated hereunder shall be subject to a civil penalty not exceeding two thousand five hundred dollars. Each day a violation continues after notice by the division constitutes a separate offense. The penalty shall be recovered by a civil action brought by the division, in the name of the state, before the circuit court of the county in which the subject well or facility is located. All such civil penalties collected shall be credited to the General Fund of the state.

    (b) Any person or persons, firm, partnership, partnership association or corporation willfully violating any of the provisions of this article which prescribe the manner of drilling and casing or plugging and filling any well, or which prescribe the methods of conserving gas from waste, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding five thousand dollars, or imprisonment in jail for not exceeding twelve months, or both, in the discretion of the court, and prosecutions under this section may be brought in the name of the State of West Virginia in the court exercising criminal jurisdiction in the county in which the violation of such provisions of the article or terms of such order was committed, and at the instance and upon the relation of any citizens of this state.

§22-6-34. Cessation of operation by order of inspector; informal conference; imposition of affirmative obligations; appeal.

    (a) Notwithstanding any other provisions of this article, an oil and gas inspector has the authority to issue a cessation order to an oil or gas operation when an inspector determines that any required by this article, which condition, practice or violation also creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air or water resources. The cessation order shall take effect immediately. Unless waived in writing, an informal conference shall be held at or near the site relevant to the violation set forth in the cessation order within twenty-four hours after the order becomes effective, or the order shall expire. The conference shall be held before a supervising oil and gas inspector, who shall, immediately upon conclusion of said conference, determine when and if the operation may resume. An operator who believes it is aggrieved by the decision of the supervising oil and gas inspector may immediately appeal to the secretary, setting forth reasons why the operation should not be halted. The secretary shall determine forthwith when the operation may be resumed.

    (b) The cessation order shall remain in effect until the secretary determines that the condition, practice or violation has been abated or until modified, vacated or released by the secretary. Where the secretary finds that the ordered cessation will not completely abate the imminent danger to health or safety of the public or the significant imminent environmental harm to land, air or water resources, the secretary shall, in addition to the cessation order, impose affirmative obligations on the operator requiring the operator to take whatever steps the secretary determines necessary to abate the imminent danger or the significant environmental harm.

    (c) Any cessation order issued pursuant to this section or any other provision of this article may be released by any inspector. An inspector shall be readily available to terminate a cessation order upon abatement of the violation.

§22-6-35. Civil action for contamination or deprivation of fresh water source or supply; presumption; water rights and replacement; waiver of replacement.

    (a) Nothing in this article affects in any way the rights of any person to enforce or protect, under applicable law, the person's interest in water resources affected by an oil or gas operation.

    (b) Unless rebutted by one of the defenses established in subsection c below, In in any action for contamination or deprivation of a fresh water source or supply within one thousand feet of the site of drilling for an oil or gas well, there shall be a rebuttable presumption that such the drilling and such the oil or gas well or either was the proximate cause of the contamination or deprivation of such the fresh water source or supply.

    (c) In order to rebut the presumption of liability established in subsection (b) above, the operator must affirmatively prove one of the following defenses:

    (1) The pollution existed prior to the drilling or alteration activity as determined by a predrilling or prealteration survey.

    (2) The landowner or water purveyor refused to allow the operator access to the property to conduct a predrilling or prealteration survey.

    (3) The water supply is not within one thousand feet of the well.

    (4) The pollution occurred more than six months after completion of drilling or alteration activities.

    (5) The pollution occurred as the result of some cause other than the drilling or alteration activity.

    (d) Any operator electing to preserve its defenses under subdivision (c)(1) or (c)(2) above shall retain the services of an independent certified laboratory to conduct the predrilling or prealteration survey of water supplies. A copy of the results of the survey shall be submitted to the department and the landowner or water purveyor in a manner prescribed by the secretary.

    (e) Any operator shall replace the water supply of an owner of interest in real property who obtains all or part of that owner's supply of water for domestic, agricultural, industrial or other legitimate use from an underground or surface source where the supply has been affected by contamination, diminution or interruption proximately caused by the oil or gas operation, unless waived by that owner.

    (f) The operator conducting the oil or gas operation shall: (1) Provide an emergency drinking water supply within twenty-four hours; (2) provide temporary water supply within seventy-two hours; (3) within thirty days begin activities to establish a permanent water supply or submit a proposal to the secretary outlining the measures and timetables to be utilized in establishing a permanent supply. The total time for providing a permanent water supply may not exceed two years. If the operator demonstrates that providing a permanent replacement water supply cannot be completed within two years, the secretary may extend the time frame on case-by-case basis; and (4) pay all reasonable costs incurred by the real property owner in securing a water supply.

    (g) A real property owner as described in subsection (b) above aggrieved under the provisions of subsections (b), (c) or (d) of this section may seek relief in court.

    (h) Notwithstanding the denial of the operator of responsibility for the damage to the real property owner’s water supply or the status of any appeal on determination of liability for the damage to the real property owner’s water supply, the operator may not discontinue providing the required water service until authorized to do so by the secretary.

§22-6-36. Declaration of oil and gas notice by owners and lessees of coal seams.

    (a) For purposes of notification under this article, any owner or lessee of coal seams shall may file a declaration of the owner's or lessee's interest in such the coal seams with the clerk of the county commission in the county where such the coal seams are located. Said The clerk shall file and index such the declaration in accordance with section two, article one, chapter thirty-nine of this code, and shall index the name of the owner or lessee of such the coal seams in the grantor index of the record maintained for the indexing of leases. If the declaration of owner’s or lessee’s interest is not filed, then notification pursuant to this article shall be made to the owner or lessee’s of coal seams of record.

    (b) The declaration, if filed, shall entitles such the owner or lessee to the notices provided in sections twelve, thirteen, fourteen, and twenty-three of this article: Provided, That the declaring owner shall be the record owner of the coal seam, and the declaring lessee shall be the record lessee with the owner's or lessee's source or sources of title recorded prior to recording such the lessee's declaration.

    (c) The declaration, if filed, shall be acknowledged by such the owner or lessee and, in the case of a lessee, may be a part of the coal lease under which the lessee claims. Such The declaration may be in the following language:

"DECLARATION OF OIL AND GAS NOTICE"

"The undersigned hereby declares:

    (1) The undersigned is the ('owner' or 'lessee') of one or more coal seams or workable coal beds as those terms are defined in section one of this article.

    (2) The coal seam(s) or workable coal bed(s) owned or leased partly or wholly by the undersigned lie(s) under the surface of lands described as follows:

    (Here insert a description legally adequate for a deed, whether by metes and bounds or other locational description, or by title references such as a book and page legally sufficient to stand in lieu of a locational description.)

    (3) The undersigned desires to be given all notices of oil and gas operations provided by sections twelve, thirteen, fourteen, and twenty-three of this article, addressed as follows:

    (Here insert the name and mailing address of the undersigned owner or lessee.)

                        _______________________________

                                              (Signature)

    (Here insert an acknowledgment legally adequate for a deed)."

    The benefits of the foregoing declaration shall be personal to the declaring owner or lessee, and not transferable or assignable in any way.

§22-6-37. Rules, orders and permits remain in effect.

    The rules promulgated and all orders and permits in effect upon the effective date of this article pursuant to the provisions of former article one, chapter twenty-two-b of this code, shall remain in full force and effect as if such those rules, orders, and permits were adopted by the director established in this chapter secretary, but all such rules, orders, and permits shall be subject to review by the director secretary to ensure they are consistent with the purposes and policies set forth in this chapter.

§22-6-38. Application of article; exclusions.

    This article shall not apply to or affect any well work permitted prior to the effective date of this article, under former article one, chapter twenty-two-b of this code, unless such the well is, after completion, whether such completion is prior to or subsequent to the effective date of this article, deepened subsequent to the effective date of this article through another coal seam or to another formation above the top of the uppermost member of the "Onondaga Group." or to a depth of less than six thousand feet, whichever is shallower.

§22-6-39. Injunctive relief.

    (a) In addition to other remedies, and aside from various penalties provided by law, whenever it appears to the director secretary that any person is violating or threatening to violate any provision of this article, any order or final decision of the director, secretary or any lawful rule promulgated hereunder, the director secretary may apply petition 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 the persons and any other persons who have been, are or are about to be involved in any practices, acts or admissions so in violation, enjoining such the person or persons from any violation or violations. Such application The petition may be made and prosecuted to conclusion, whether or not any violation or violations have resulted or shall result in prosecution or conviction under the provisions of this article.

    (b) Upon application petition by the director secretary, the circuit courts of this state may, by mandatory or prohibitory injunction, compel compliance with the provisions of this article and all orders and final decisions of the director secretary. The court may issue a temporary injunction in any case pending a decision on the merits of any application petition filed. Any other section of this code to the contrary notwithstanding, the state shall not be required to furnish bond or other undertaking as a prerequisite to obtaining mandatory, prohibitory or temporary injunctive relief under the provisions of this article.

    (c) The judgment of the circuit court upon application petition permitted by the provisions of this section shall be 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 director secretary shall be represented in all such proceedings by the secretary’s in-house counsel as provided in section six, article one of this chapter, or the secretary may be represented by the Attorney General or the Attorney General's assistants or in such proceedings in the circuit courts by the prosecuting attorney of the several counties, as well, all without additional compensation. The director secretary, with the written approval of the Attorney General, may employ special counsel to represent the director secretary in any such those proceedings.

    (e) If the director secretary shall refuse or fail to apply for an injunction to enjoin a violation or threatened violation of any provision of this article, any order or final decision of the director, secretary or any rules promulgated hereunder within ten days after receipt of a written request to do so by any well operator, 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 beneath said tract of land, adversely affected by such the violation or threatened violation, the person making such the request may apply on their his, her or its own behalf for an injunction to enjoin such the violation or threatened violation in any court in which the director secretary might have brought suit. The director secretary shall be made party defendant in such application that petition in addition to the person or persons violating or threatening to violate any provisions of this article, any final order or decision of the director, secretary or any rule promulgated hereunder. The application petition shall proceed and injunctive relief may be granted in the same manner as if the application had been made by the director: Except secretary, except that the court may require a bond or other undertaking from the plaintiff.

§22-6-40. Appeal from order of issuance or refusal of permit to drill or fracture; procedure.

    Any party to the proceeding under section fifteen of this article or section seven, article eight, chapter twenty-two-c of this code, adversely affected by the issuance of a drilling permit or to the issuance of a fracturing permit or the refusal of the director to grant a drilling permit or fracturing permit is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern such judicial review with like effect as if the provisions of said section four were set forth in extenso in this section.

    The judgment of the circuit court shall be 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.

§22-6-40. Seismic activity.

    (a) Prior to conducting any seismic activity for seismic exploration for oil or gas, the company or person performing the activity must provide notice to Miss Utility of West Virginia Inc. and to all surface owners, mineral owners, and storage field operators on whose property blasting, percussion or other seismic-related activities will occur or whose property interests are within the geographic area encompassed by the seismic study.

    (b) The notice shall be provided at least thirty days prior to commencement of the seismic activity and shall specify a seventy-two hour period in which the blasting, percussion or other seismic-related activity will occur. In the event the seismic activity is not performed within the designated seventy-two period, the company or person performing seismic activity shall send a revised notice.

    (c) 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 utilized for blasting.

    (d) Nothing in this section shall be construed to decide questions as to whether seismic activity may be secured by mineral owners, surface owners or other ownership interests.

ARTICLE 7. OIL AND GAS PRODUCTION DAMAGE COMPENSATION.

§22-7-3. Compensation of surface owners for drilling operations.

    (a) The oil and gas developer shall be obligated to pay the surface owner compensation for:

    (1) Lost income or expenses incurred as a result of being unable to dedicate land actually occupied by the driller's operation or to which access is prevented by such the drilling operation to the uses to which it was dedicated prior to commencement of the activity for which a permit was obtained measured from the date the operator enters upon the land until the date reclamation is completed, (2) the market value of crops destroyed, damaged or prevented from reaching market, (3) the stumpage value of timber, as that term is defined by the West Virginia Division of Forestry, destroyed, damaged or prevented from reaching market, (3) (4) any damage to a water supply in use prior to the commencement of the permitted activity, (4) (5) the cost of repair of personal property up to the value of replacement by personal property of like age, wear and quality, and (5) (6) the diminution in value, if any, of the surface lands and other property after completion of the surface disturbance done pursuant to the activity for which the permit was issued determined according to the actual use made thereof by the surface owner immediately prior to the commencement of the permitted activity.

    The amount of damages may be determined by any formula mutually agreeable between the surface owner and the oil and gas developer.

    (b) Any reservation or assignment of the compensation provided in this section apart from the surface estate except to a tenant of the surface estate is prohibited.

    (c) In the case of surface lands owned by more than one person as tenants in common, joint tenants or other coownership, any claim for compensation under this article shall be for the benefit of all such coowners. The resolution of a claim for compensation provided in this article shall operate as a bar to the assertion of additional claims under this section arising out of the same drilling operations.

CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES COMMISSIONS AND COMPACTS.

ARTICLE 8. SHALLOW GAS WELL REVIEW BOARD.

§22C-8-2. Definitions.

    Unless the context in which used clearly requires a different meaning, as used in this article:

    (1) “Board” means the shallow gas well review board provided for in section four of this article;

    (2) “Chair” means the chair of the shallow gas well review board provided for in section four of this article;

    (3) “Coal operator” means any person who proposes to or does operate a coal mine;

    (4) “Coal seam” and “workable coal bed” are interchangeable terms and mean any seam of coal twenty inches or more in thickness, unless a seam of less thickness is being commercially worked, or can in the judgment of the division department foreseeably be commercially worked and will require protection if wells are drilled through it;

    (5) “Commission” means the Oil and Gas Conservation Commission provided for in section four, article nine of this chapter;

    (6) “Commissioner” means the oil and gas conservation commissioner provided for in section four, article nine of this chapter;

    (7) “Correlative rights” means the reasonable opportunity of each person entitled thereto to recover and receive without waste the gas in and under a tract or tracts, or the equivalent thereof;

    (8) “Deep well” means any well other than a shallow well or coalbed methane well, drilled and completed in to a formation at or below the top of the uppermost member of the “Onondaga Group;”

    (9) “Division” “Department” means the state division Department of Environmental Protection provided for in chapter twenty-two of this code;

    (10) “Director” means the director of the Division of Environmental Protection as established in article one, chapter twenty-two of this code or such other person to whom the division department delegates authority or duties pursuant to sections six or eight, article one, chapter twenty-two of this code;

    (11) (10) “Drilling unit” means the acreage on which the board decides one well may be drilled under section ten of this article;

    (12) (11) “Gas” means all natural gas and all other fluid hydrocarbons not defined as oil in subdivision (15) of this section;

    (13) (12) “Gas operator” means any person who owns or has the right to develop, operate and produce gas from a pool and to appropriate the gas produced therefrom either for such person or for such person and others. In the event that there is no gas lease in existence with respect to the tract in question, the person who owns or has the gas rights therein shall be considered a “gas operator” to the extent of seven-eights of the gas in that portion of the pool underlying the tract owned by such person, and a “royalty owner” to the extent of one-eighth of such gas;

    (14) (13) “Just and equitable share of production” means, as to each person, an amount of gas in the same proportion to the total gas production from a well as that person’s acreage bears to the total acreage in the drilling unit;

    (15) (14) “Oil” means natural crude oil or petroleum and other hydrocarbons, regardless of gravity, which are produced at the well in liquid form by ordinary production methods and which are not the result of condensation of gas after it leaves the underground reservoir;

    (16) (15) “Owner” when used with reference to any coal seam, shall include any person or persons who own, lease or operate such coal seam;

    (17) (16) “Person” means any natural person, corporation, firm, partnership, partnership association, venture, receiver, trustee, executor, administrator, guardian, fiduciary or other representative of any kind, and includes any government or any political subdivision or any agency thereof;

    (18) (17) “Plat” means a map, drawing or print showing the location of one or more wells or a drilling unit;

    (19) (18) “Pool” means an underground accumulation of gas in a single and separate natural reservoir (ordinarily a porous sandstone or limestone). It is characterized by a single natural-pressure system so that production of gas from one part of the pool tends to or does affect the reservoir pressure throughout its extent. A pool is bounded by geologic barriers in all directions, such as geologic structural conditions, impermeable strata, and water in the formation, so that it is effectively separated from any other pools which may be present in the same district or in the same geologic structure;

    (20) (19) “Royalty owner” means any owner of gas in place, or gas rights, to the extent that such owner is not a gas operator as defined in subdivision (13) of this section;

    (20) “Secretary” means the Secretary of the Department of Environmental Protection as established in article one, chapter twenty-two of this code or such other person to whom the secretary delegates authority or duties pursuant to sections six or eight, article one, chapter twenty-two of this code;

    (21) “Shallow well” means any gas well other than a coalbed methane well, drilled no deeper than one hundred feet below the top of the “Onondaga Group”: and completed in a formation above the top of the uppermost member of the “Onondaga Group:”Provided, That in drilling a shallow well the well operator may penetrate into the “Onondaga Group” to a reasonable depth, not in excess of twenty feet, in order to allow for logging and completion operations, but in no event may the “Onondaga Group” formation or any formation below the “Onondaga Group” be otherwise produced, perforated or stimulated in any manner;

    (22) “Tracts comprising a drilling unit” means that all separately owned tracts or portions thereof which are included within the boundary of a drilling unit;

    (23) “Well” means any shaft or hole sunk, drilled, bored or dug into the earth or into underground strata for the extraction, injection or placement of any liquid or gas, or any shaft or hole sunk or used in conjunction with such extraction, injection or placement. The term “well” does not include any shaft or hole sunk, drilled, bored or dug into the earth for the sole purpose of core drilling or pumping or extracting therefrom potable, fresh or usable water for household, domestic, industrial, agricultural or public use; and

    (24) “Well operator” means any person who proposes to or does locate, drill, operate or abandon any well.

§22C-8-4. Shallow gas well review board; membership; method of appointment; vacancies; compensation and expenses; staff.

    (a) There is hereby continued the Shallow Gas Well Review Board which shall be composed of three members, two of whom shall be the commissioner, and the chief of the office of oil and gas a person representing the interests of surface owners of real property, and The remaining member of the board shall be a registered professional who has been successfully tested in mining engineering, with at least ten years practical experience in the coal mining industry, and the latter two of which shall be appointed by the Governor, by and with the advice and consent of the Senate: Provided, That any person so appointed while the Senate of this state is not in session shall be permitted to serve in an acting capacity for one year from appointment or until the next session of the Legislature, whichever is less. As soon as practical after appointment and qualification of the member appointed by the Governor, the Governor shall convene a meeting of the board for the purpose of organizing and electing a chair, who serves as such until a successor is elected by the board.

    (b) A vacancy in the membership appointed by the Governor shall be filled by appointment by the Governor within sixty days after the occurrence of such the vacancy. Before performing any duty hereunder, each member of the board shall take and subscribe to the oath required by section 5, article IV of the Constitution of West Virginia, and serves thereafter until a successor has been appointed and qualified.

    (c) The members of the board appointed by the Governor shall be paid the same compensation, and each member of the board shall be paid the expense reimbursement, as is paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law for each day or portion thereof engaged in the discharge of official duties. Each member of the board shall also be reimbursed for all reasonable and necessary expenses actually incurred in the performance of the duties as a member of the board.

    (d) The division department shall furnish office and clerical staff and supplies and services, including reporters for hearings, as required by the board.

ARTICLE 9. OIL AND GAS CONSERVATION.

§22C-9-1. Declaration of public policy; legislative findings.

    (a) It is hereby declared to be the public policy of this state and in the public interest to:

    (1) Foster, encourage and promote exploration for and development, production, utilization and conservation of oil and gas resources;

    (2) Prohibit waste of oil and gas resources and unnecessary surface loss of oil and gas and their constituents;

    (3) Encourage the maximum recovery of oil and gas; and

    (4) Safeguard, protect and enforce the correlative rights of operators and royalty owners in a pool or unconventional reservoir of oil or gas to the end that each such operator and royalty owner may obtain his just and equitable share of production from such pool or unconventional reservoir of oil or gas.

    (b) The Legislature hereby determines and finds that oil and natural gas found in West Virginia in shallow sands or strata have been produced continuously for more than one hundred years; that oil and gas deposits in such shallow sands or strata have geological and other characteristics different than those found in deeper other formations; and that in order to encourage the maximum recovery of oil and gas from all productive formations in this state, it is not in the public interest, with the exceptions of shallow wells utilized in a secondary recovery program and horizontal shallow wells, to enact statutory provisions relating to the exploration for or production from oil and gas from shallow wells, as defined in section two of this article, but that it is in the public interest to enact statutory provisions establishing regulatory procedures and principles to be applied to the exploration for or production of oil and gas from deep wells and horizontal shallow wells, as defined in said section two.

§22C-9-2. Definitions.

    (a) Unless the context in which used clearly requires a different meaning, as used in this article:

    (1) “Commission” means Oil and Gas Conservation Commission and “commissioner” means the oil and gas conservation commissioner as provided for in section four of this article;

    (2) “Director” means the director of the Division of Environmental Protection oil and gas and “chief” “secretary” means the chief of the office of oil and gas secretary of the Department of Environmental Protection;

    (3) “Person” means any natural person, corporation, partnership, receiver, trustee, executor, administrator, guardian, fiduciary or other representative of any kind, and includes any government or any political subdivision or any agency thereof;

    (4) “Operator” means any owner of the right to develop, operate and produce oil and gas from a pool and to appropriate the oil and gas produced therefrom, either for such that person or for such that person and others; in the event that there is no oil and gas lease in existence with respect to the tract in question, the owner of the oil and gas rights therein shall be considered as “operator” to the extent of seven-eighths of the oil and gas in that portion of the pool underlying the tract owned by such the owner, and as “royalty owner’ as to one-eighth interest in such the oil and gas; and in the event the oil is owned separately from the gas, the owner of the substance being produced or sought to be produced from the pool shall be considered as “operator” as to such that pool;

    (5) “Royalty owner” means any owner of oil and gas in place, or oil and gas rights, to the extent that such the owner is not an operator as defined in subdivision (4) of this section;

    (6) “Independent producer” means a producer of crude oil or natural gas whose allowance for depletion is determined under Section 613A of the federal Internal Revenue Code in effect on July 1, 1997;

    (7) “Net proceeds” means the actual proceeds received less post-production costs incurred downstream of the wellhead, including without limitation, gathering, compression, treating, transportation, and marketing costs;

    (7) (8) “Oil” means natural crude oil or petroleum and other hydrocarbons, regardless of gravity, which are produced at the well in liquid form by ordinary production methods and which are not the result of condensation of gas after it leaves the underground reservoir;

    (8) (9) “Gas” means all natural gas and all other fluid hydrocarbons not defined as oil in subdivision (7) (8) of this section;

    (9) (10) “Pool” means an underground accumulation of petroleum or gas in a single and separate reservoir (ordinarily a porous sandstone or limestone). It is characterized by a single natural-pressure system so that production of petroleum or gas from one part of the pool affects the reservoir pressure throughout its extent. A pool is bounded by geologic barriers in all directions, such as geologic structural conditions, impermeable strata, and water in the formations, so that it is effectively separated from any other pools that may be presented in the same district or on the same geologic structure;

    (11) “Pooling” means the integration of interests within a drilling unit created voluntarily or pursuant to this article to facilitate the drilling of wells producing from one or more unconventional reservoirs;

    (10) (12) “Well” means any shaft or hole sunk, drilled, bored or dug into the earth or underground strata for the extraction of oil or gas;

    (11) (13) “Shallow well” means any well other than a coalbed methane well, drilled no deeper than one hundred feet below the top of the “Onondaga Group”: and completed in a formation above the top of the uppermost member of the “Onondaga Group:”Provided, That in drilling a shallow well the operator may penetrate into the “Onondaga Group” to a reasonable depth, not in excess of twenty feet, in order to allow for logging and completion operations, but in no event may the “Onondaga Group” formation or any formation below the “Onondaga Group” be otherwise produced, perforated or stimulated in any manner;

    (12) (14) “Deep well” means any well, other than a shallow well or coalbed methane well, drilled and completed in to a formation at or below the top of the uppermost member of the “Onondaga Group;”

    (15) “Horizontal shallow well” means a shallow well that is first drilled on a vertical or directional plane, but which is eventually curved to become horizontal (or near horizontal) in order to parallel a particular geologic formation. Multiple horizontal wells may be drilled from the same surface well pad. A horizontal shallow well may also have multiple horizontal side laterals drilled into the same formation. A horizontal shallow well may have completions into multiple formations above the Onondaga Group from the same well base to the extent the operator has the right to develop those formations and has or obtains the voluntary rights or any necessary commission authorization to do so;

    (16) “Lateral” means the portions of a well bore that deviate from approximate vertical orientation to approximate horizontal orientation and all well bores beyond such deviation to total depth or terminus thereof;

    (13) (17) “Drilling unit” means the acreage on which one or more wells may be drilled to produce oil or gas from a specified formation;

    (18) “Unconventional reservoir” means any geological formation existing that contains or is otherwise productive of oil or natural gas that generally cannot be produced at economic flow rates nor in economic volumes except by wells stimulated by hydraulic fracture treatments, a horizontal wellbore, or by using multilateral wellbores or some other technique to expose more of the reservoir to the wellbore;

    (19) “Unitization” means the combination of two or more leasehold tracks or mineral interests to more efficiently extract the oil or gas from the target formation;

    (14) (20) “Waste” means and includes:

    (A) Physical waste, as that term is generally understood in the oil and gas industry;

    (B) The locating, drilling, equipping, operating or producing of any oil or gas well in a manner that causes, or tends to cause, a reduction in the quantity of oil or gas ultimately recoverable from a pool or unconventional reservoir under prudent and proper operations, or that causes or tends to cause unnecessary or excessive surface loss of oil or gas; or

    (C) The drilling of more deep wells than are reasonably required to recover efficiently and economically the maximum amount of oil and gas from a pool or unconventional reservoir. Waste does not include gas vented or released from any mine areas as defined in section two, article one, chapter twenty-two-a of this code or from adjacent coal seams which are the subject of a current permit issued under article two of chapter twenty-two-a of this code: Provided, That nothing in this exclusion is intended to address ownership of the gas;

    (15) (21) “Correlative rights” means the reasonable opportunity of each person entitled thereto to recover and receive without waste the oil and gas in and under his or her tract or tracts, or the equivalent thereof; and

    (16) (22) “Just and equitable share of production” means, as to each person, an amount of oil or gas or both substantially equal to the amount of recoverable oil and gas in that part of a pool or unconventional reservoir underlying such that person’s tract or tracts.

    (b) Unless the context clearly indicates otherwise, the use of the word “and” and the word “or” shall be interchangeable, as, for example, “oil and gas” shall mean oil or gas or both.

§22C-9-3. Application of article; exclusions.

    (a) Except as provided in subsection (b) of this section, the provisions of this article shall apply to all lands located in this state, 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. The provisions of this article are in addition to and not in derogation of or substitution for the provisions of article six, chapter twenty-two of this code.

    (b) This article shall not apply to or affect:

    (1) Shallow wells other than those utilized in secondary recovery programs as set forth in section eight of this article and horizontal shallow wells as set forth in section nine of this article;

    (2) Any well commenced or completed prior to the ninth day of March, one thousand nine hundred seventy-two March 9, 1972, unless such the well is, after completion (whether such completion is prior or subsequent to that date):

    (A) Deepened subsequent to that date to produce from a formation at or below the top of the uppermost member of the “Onondaga Group”; or

    (B) Involved in secondary recovery operations for oil under an order of the commission entered pursuant to section eight of this article;

    (3) Gas storage operations or any well employed to inject gas into or withdraw gas from a gas storage reservoir or any well employed for storage observation; or

    (4) Free gas rights.

    (c) The provisions of this article shall not be construed to grant to the commissioner or the commission authority or power to:

    (1) Limit production or output, or prorate production of any oil or gas well, except as provided in subdivision (6), subsection (a), section seven of this article; or

    (2) Fix prices of oil or gas.

    (d) Nothing contained in either this chapter or chapter twenty-two of this code may be construed so as to require, prior to commencement of plugging operations, a lessee under a lease covering a well to give or sell the well to any person owning an interest in the well, including, but not limited to, a respective lessor, or agent of the lessor, nor shall the lessee be required to grant to a person owning an interest in the well, including, but not limited to, a respective lessor, or agent of a lessor, an opportunity to qualify under section twenty-six, article six, chapter twenty-two of this code to continue operation of the well.

§22C-9-4. Oil and gas conservation commissioner and commission; commission membership; qualifications of members; terms of members; vacancies on commission; meetings; compensation and expenses; appointment and qualifications of commissioner; general powers and duties.

    (a) The "Oil and Gas Conservation Commission" shall be composed of five members. The director of the Division of Environmental Protection and the chief of the office of oil and gas State Geologist or his or her designee shall be a members of the commission ex officio. The remaining three four members of the commission shall be appointed by the Governor by and with the advice and consent of the Senate, and may not be employees of the division Department of Environmental Protection. Of the three four members appointed by the Governor, one shall be an independent producer and at least one shall be a public member not engaged in an activity under the jurisdiction of the Public Service Commission or the federal energy regulatory commission. The third appointee shall possess a degree from an accredited college or university in petroleum engineering or geology and must be a registered professional engineer with particular knowledge and experience in the oil and gas industry and shall serve as commissioner and as chair of the commission. The fourth appointee shall be a member of the public representing the interests of surface owners of real property.

    (b) The members of the commission appointed by the Governor shall be appointed for overlapping terms of six years each, except that the original appointments shall be for terms of two, four and six years, respectively. Each member appointed by the Governor shall serve until the member’s successor has been appointed and qualified. Members may be appointed by the Governor to serve any number of terms. The members of the commission appointed by the Governor, before performing any duty hereunder, shall take and subscribe to the oath required by section 5, article IV of the Constitution of West Virginia. Vacancies in the membership appointed by the Governor shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant, and such the appointment shall be made by the Governor within sixty days of the occurrence of such the vacancy. Any member appointed by the Governor may be removed by the Governor in case of incompetency, neglect of duty, gross immorality or malfeasance in office. A commission member’s appointment shall be terminated as a matter of law if that member fails to attend three consecutive meetings. The Governor shall appoint a replacement within thirty days of the termination.

    (c) The commission shall meet at such the times and places as shall be designated by the chair. The chair may call a meeting of the commission at any time, and shall call a meeting of the commission upon the written request of two members or upon the written request of the oil and gas conservation commissioner or the chief director of the office division of oil and gas. Notification of each meeting shall be given in writing to each member by the chair at least fourteen calendar days in advance of the meeting. Three members of the commission, at least two of whom are appointed members, shall constitute a quorum for the transaction of any business.

    (d) The commission shall pay each member the same compensation as is paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law for each day or portion thereof engaged in the discharge of official duties and shall reimburse each member for actual and necessary expenses incurred in the discharge of official duties.

    (e) The commission is hereby empowered and it is the commission’s duty to 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 commission has jurisdiction and authority over all persons and property necessary therefor. The commission is authorized to make such investigation of records and facilities as the commission deems proper. In the event of a conflict between the duty to prevent waste and the duty to protect correlative rights, the commission’s duty to prevent waste shall be paramount.

    (f) Without limiting the commission’s general authority, the commission shall have specific authority to:

    (1) Regulate the spacing of deep wells;

    (2) Make and enforce reasonable rules and orders reasonably necessary to prevent waste, protect correlative rights, govern the practice and procedure before the commission and otherwise administer the provisions of this article;

    (3) Issue subpoenas for the attendance of witnesses and subpoenas duces tecum for the production of any books, records, maps, charts, diagrams and other pertinent documents, and administer oaths and affirmations to such witnesses, whenever, in the judgment of the commission, it is necessary to do so for the effective discharge of the commission’s duties under the provisions of this article; and

    (4) Serve as technical advisor regarding oil and gas to the Legislature, its members and committees, to the chief director of office the division of oil and gas, to the division Department of Environmental Protection and to any other agency of state government having responsibility related to the oil and gas industry.

    (g) The commission may delegate to the commission staff the authority to approve or deny an application for new well permits, to establish drilling units or special field rules if:

    (1) The application conforms to the rules of the commission; and

    (2) No request for hearing has been received.

    (h) The commission may not delegate its authority to:

    (1) Propose legislative rules;

    (2) Approve or deny an application for new well permits, to establish drilling units or special field rules if the conditions set forth in subsection (g) of this section are not met; or

    (3) Approve or deny an application for the pooling of interests within a drilling unit.

    (i) Any exception to the field rules or the spacing of wells which does not conform to the rules of the commission, and any application for the pooling of interests within a drilling unit, must be presented to and heard before the commission.

§22C-9-7a. Drilling units and the pooling of interests in drilling             units in connection with shallow horizontal oil            or gas wells.

    (a) Drilling units.

    (1) An application to establish drilling units may be filed with the commission by the operator or owner of any lands directly and immediately affected by the drilling of a horizontal shallow oil or gas well. Each application shall contain information as prescribed by reasonable rules proposed by the commission in accordance with the provisions of section five of this article.

    (2) To establish a drilling unit pursuant to this section, the applicant must control, by ownership, lease or contract, at least seventy-five percent of the net acreage (calculating partial interests on a pro rata, net acreage basis) in such existing or proposed drilling unit.

    (3) Upon the filing of an application to establish drilling units, the commission shall provide notice to all interested parties in accordance with section five of this article. Interested parties to a proposed drilling unit are persons who control an interest in the proposed drilling unit who have not otherwise entered into a voluntary agreement with the applicant and the owners of oil and gas in the target formation in land directly adjacent to but outside the proposed drilling unit.

    (4) If the application does not conform to the existing rules of the commission, then the commission shall set a hearing and provide notice to all interested parties. If the application conforms to the rules of the commission, the commission shall provide notice of the filing of the application to all interested parties. Each notice shall describe the area for which a unitization order is to be entered in recognizable, narrative terms; contain other information as is essential to the giving of proper notice, including the time and date and place of a hearing, if any; include a statement that any party has a right to a hearing before the commission; and include a statement that any request for hearing must be filed with the commission within thirty days of receipt of notice. If no request for hearing has been received within the thirty days following receipt of the notice, the commission may proceed to process the application. If a request for hearing has been received by the commission, then the commission shall set a hearing and provide notice to all interested parties.

    (5) The commission shall determine the acreage to be contained within each drilling unit, the shape thereof, and the minimum distance from the outside boundary of the unit at which a horizontal shallow well may be drilled thereon. The commission shall consider:

    (A) The surface topography and property lines of the lands underlaid by the drilling units to be included in such order;

    (B) The azimuth of the horizontal shallow wells to be drilled, the location of the drilling pad within the drilling unit on which multiple wells will be drilled, and the number of horizontal shallow wells to be drilled on the pad;

    (C) The plan of horizontal shallow well spacing then being employed or proposed in the drilling unit for the lands;

    (D) The depth at which production from the drilling unit is located;

    (E) The nature and character of the producing unconventional reservoir, and whether the substance produced or sought to be produced is gas or oil or both;

    (F) The maximum area which may be drained efficiently and economically by one horizontal shallow well;

    (G) Any established or proposed drilling units for the same formation that are adjacent to the proposed drilling unit; and

    (H) Any other available geological or scientific data pertaining to the unconventional reservoir which may be of probative value to the commission in determining the proper horizontal shallow well drilling units therefor.

     If the commission determines that additional drilling units should be established, the commission shall enter an order establishing those drilling units of a specified and approximately uniform size and shape for each drilling unit subject to the provisions of this section.

    (6) When it is determined that an unconventional reservoir underlies an area for which a unitization order is to be entered for a drilling unit or units, the commission shall include in its order all lands determined or believed to be affected by the drilling unit or units and exclude all other lands.

    (7) No drilling unit established by the commission shall be smaller than the maximum area which can be drained efficiently and economically by one horizontal shallow well: Provided, That if there is not sufficient evidence from which to determine the area which can be drained efficiently and economically by one horizontal shallow well, the commission may enter an order establishing temporary drilling units for the orderly development of the unconventional reservoir pending the obtaining of information necessary to determine the ultimate spacing for the unconventional reservoir.

    (8) In considering the request for drilling unit, the commission may establish additional units if it determines that the additional units are necessary to effectuate the purposes of this article. When establishing additional units, the commission shall provide notice to all interested parties and allow all interested parties to participate in a hearing for the additional unit or units.

    (9) A unitization order establishing drilling units shall specify the minimum distance from the nearest outside boundary of the drilling unit at which a horizontal shallow well may be drilled. If the commission finds that a horizontal shallow well to be drilled at or more than the specified minimum distance from the boundary of a drilling unit would not be likely to produce in paying quantities or will encounter surface conditions which would substantially add to the burden or hazard of drilling the horizontal shallow well, or that a location within the area permitted by the order is prohibited by the lawful order of any state agency or court, the commission is authorized after notice and hearing to make an order permitting the horizontal shallow well to be drilled at a location within the minimum distance prescribed by the order. In granting exceptions to the order, the commission may restrict the production from any horizontal shallow well so that each person entitled thereto in the drilling unit shall not produce or receive more than his or her just and equitable share of the production from the unconventional reservoir.

    (10) An order establishing drilling units for an unconventional reservoir shall cover all lands determined or believed to be affected by the drilling unit or units, and may be modified by the commission from time to time to include additional lands determined to be affected by the drilling unit or units or to exclude lands determined not to be affected by the drilling unit or units. An order establishing drilling units may be modified by the commission to permit the drilling of additional horizontal shallow wells on a reasonably uniform pattern at a uniform minimum distance from the nearest unit boundary as provided above. Any order modifying a prior order shall be made only after application by an interested operator and notice and hearing as prescribed herein for the original order: Provided, That drilling units established by order shall not exceed six hundred forty acres for a horizontal shallow gas well: Provided, however, That the commission may exceed the acreage limitation by ten percent if the applicant demonstrates that the area would be drained efficiently and economically by a larger drilling unit.

    (11) After the date an application to establish drilling units has been filed with the commission, no additional horizontal shallow well shall be commenced for production from the proposed units until the order establishing drilling units has been made, unless the commencement of the horizontal shallow well is authorized by order of the commission.

    (12) The commission shall, within forty-five days after the filing of an application to establish drilling units for an unconventional reservoir subject to the provisions of this section, enter an order establishing the drilling units, dismiss the application, or for good cause, continue the application process.

    (13) As part of the order establishing a drilling unit, the commission shall prescribe just and reasonable terms and conditions upon which the royalty interests in the unit shall, in the absence of voluntary agreement, be deemed to be integrated without the necessity of a subsequent order integrating the royalty interests.

    (14) If a hearing has been held on an application submitted pursuant to this subsection, the order shall be a final order. If no hearing has been held, the commission shall issue a proposed order and shall provide a copy of the proposed order, together with notice of the right to appeal and request a hearing, to all interested parties. Any party aggrieved by the proposed order may appeal the proposed order to the full commission and request a hearing. Notice of appeal and request for hearing shall be made in accordance with section ten of this article within thirty days of entry of the order. If the commission does not receive an appeal and request for hearing within thirty days, the proposed order shall become final.

    (b) Pooling of interests in drilling units.

    (1) When two or more separately owned tracts are embraced within a drilling unit, or when there are separately owned interests in all or a part of a drilling unit, the interested persons may pool their tracts or interests for the development and operation of the drilling unit. In the absence of voluntary pooling and upon application of the operator having the majority interest in the drilling unit, an operator may seek a pooling order from the commission after notice is provided to interested parties and upon a hearing of the commission. Each notice shall describe the area for which an order is to be entered in recognizable, narrative terms; and contain such other information as is essential to the giving of proper notice, including the time and date and place of a hearing. After the hearing, the commission shall enter an order pooling all tracts or interests in the drilling unit for the development and operation thereof and for sharing production therefrom. Each pooling order shall be upon terms and conditions which are just and reasonable, and in no event shall drilling be initiated on the tract of an unleased owner without the owner’s written consent.

    (2) All operations, including, but not limited to, the commencement, drilling or operation of a horizontal shallow well upon any portion of a drilling unit for which a pooling order has been entered, shall be deemed for all purposes the conduct of operations upon each separately owned tract or portion thereof in the drilling unit by the several owners thereof. That portion of the production allocated to a separately owned tract or portion thereof included in a drilling unit shall, when produced, be deemed for all purposes to have been actually produced from the tract by a horizontal shallow well drilled thereon.

    (3) Any pooling order under the provisions of subsection (b) shall authorize the drilling and operation of a horizontal shallow well for the production of oil or gas from the pooled acreage; shall designate the operator to drill and operate the horizontal shallow well; shall prescribe the time and manner in which all owners of operating interests in the pooled tracts or portions of tracts may elect to participate therein; shall provide that all reasonable costs and expenses of drilling, completing, equipping, operating, plugging and abandoning the horizontal shallow well shall be borne, and all production therefrom shared, by all owners of operating interests in proportion to the net oil or gas acreage in the pooled tracts owned or under lease to each owner; and shall make provisions for payment of all reasonable costs thereof, including a reasonable charge for supervision and for interest on past-due accounts, by all those who elect to participate therein.

    (4) In determining the operator, the commission should designate any person who controls seventy-five percent or more of the acreage in the pooled tracts. If no person owns more than seventy-five percent of the acreage in the pooled unit, the commission will designate the operator based upon the criteria that will effectuate the purposes of this article.

    (5) Each pooling order shall specify the activities that the operator may conduct on the surface of the tracts subject to the order in accordance with the following criteria:

    (A) Where the owner of a mineral interest that is subject to the pooling order has not leased its interest, surface disturbance may not be conducted upon the surface of the unleased mineral interest without consent from the owner or upon a showing by the operator that there is no other feasible location within the drilling unit to locate the drilling pad or access road or pipeline incidental to the drilling activities.

    (B) Where the owner of a mineral interest that is subject to the pooling order has leased its mineral interest, drilling activities may be conducted on the surface of the lease tract and the operator may construct and operate access roads and pipelines incidental to the drilling activities on the surface of all property subject to the pooling order in accordance with the terms of the lease governing surface activities if the operator provides the owners of the surface estate the notice provided for in section twelve, article six, chapter twenty-two of this code and if the operator provides the owner of the surface estate compensation for damages pursuant to the Oil and Gas Production Damage Compensation Act established in article seven, chapter twenty-two of this code.

    (6) Upon request, any pooling order shall provide just and equitable alternatives whereby an owner of an operating interest who does not elect to participate in the risk and cost of the drilling of a horizontal shallow well may elect:

    (A) Option 1. Either to assign an oil and gas lease ownership interest to the operator on such terms as the parties may agree or, if unable to agree, upon such terms as are established by the commission in an order; or to lease an unleased oil and gas ownership interest pursuant to the terms of the oil and gas lease the operator submitted with the application; or

     (B) Option 2. To become a nonoperating working interest owner by participating in the risk and cost of the well in accordance with the terms of section six of this article and the joint operating agreement the operator submitted with the application; or

    (C) Option 3. To participate in the operation of the well as a nonoperating carried interest owner in accordance with the terms of section six of this article and the joint operating agreement the operator submitted with the application (“Carried Well Operator”).

    (7) Any interest owners whose interests are already subject to an oil and gas lease shall have no election rights and, other than the operator having the right to pool the interests, their interests shall continue to be governed by the terms of their leases and in accordance with the provisions of this article. Any interest owner who does not make an election within the thirty days prescribed herein and any interest owner who chooses Option 2 but does not tender its share of the estimated drilling costs to the operator within thirty days from the date of the commission’s order establishing the pool shall be deemed to have elected Option 1.

    (A) The royalty interest shall be the weighted average of the royalties payable under all leases and parts of the leases controlled by the operator that are included in the unit as of the date of the application, and the minimum royalty shall be the minimum royalty for oil and gas leases at the time of the application pursuant to laws of this state: Provided, That any royalty owner who, in good faith, has entered into an arm’s length, bona fide lease or other contract providing for any different royalty or payment amount shall be entitled to receive the royalty calculated at the rate provided for in that contract subject to the lease attribution provisions of this section. Each person entitled to a royalty shall be entitled to the royalty interest of the net proceeds received by the operator for the sale of the oil or gas produced from the well development and operation multiplied by that person’s interest within the unit.

    (B) The working interest owners’ net revenue share shall be the net proceeds of sale of oil and gas multiplied by that person’s interest within the unit. Any overriding royalties, royalties exceeding a one-eighth royalty or other costs attributable solely to an oil and gas lease shall be paid out of the applicable interest owner’s net revenue share.

    (C) In the case of Option 3, the proportionate part of the completed-for-production costs allocable to the carried well operator’s interest shall be charged against the carried well operator’s share of production from the drilling unit. The carried well operator’s rights, interests, and claims in and to the oil and gas obtained from the drilling unit are assigned to the operator until the proceeds from the sale of the carried well operator’s share of production from the drilling unit (exclusive of any royalty, excess or overriding royalty or other nonoperating or noncost bearing burden reserved in any lease, assignment thereof or agreement relating thereto covering the interest) equals risk premium to be determined by the commission to be between two hundred and three hundred percent of the carried well operator’s share of the completed-for-production costs allocable to the interest of the carried interest owner. The completed-for-production costs are the operator’s actual costs for the well development and operation.

    (D) After each owner has made, or has been deemed to have made, an election pursuant to subsection (5) of this section, the operator shall distribute a statement of interests to the interest owners whose interests have been pooled according to this section of the code. The statement of interests shall set out the net revenue interest of each working interest owner, including each carried interest owner, and the royalty interest of each royalty owner. The fractional interest of each owner shall be expressed as a decimal carried to the eighth place. Thereafter, payments shall be made to working interest owners, carried interest owners, and royalty owners in accordance with the statement of interests, except that payments attributable to conflicting claims may be deposited in a suspense account or otherwise dealt with in accordance with the provisions of the applicable lease or joint operating agreement.

    (E) Upon resolution of conflicting claims, either by voluntary agreement of the parties or a final judicial determination, the operator shall distribute a revised statement of interests reflecting the agreement or determination.

    (F) To the extent an interest owner cannot be determined or located after diligent efforts by the well operator, the well operator shall hold the monies payable to that interest owner in a suspense account for that interest owner until that interest owner is located or the property is deemed abandoned and disposed of in accordance with the provisions of the Uniform Unclaimed Property Act, whichever comes first.

    (8) If a dispute shall arise as to the costs of drilling, completing, equipping and operating a deep well, the commission shall determine and apportion the costs, within ninety days from the date of written notification to the commission of the existence of such dispute.

    (9) The commission shall, within forty-five days after the filing of an application, enter an order, dismiss the application, or for good cause, continue the application process.

 

    NOTE: The purpose of this bill is to modernize the oil and gas regulatory program and to provide a means to regulate horizontal drilling and drilling processes that utilize large volumes of water. It also adds “timber” to the list of things for which a surface owner may be compensated. The bill also removes the Chief of the Office of Oil & Gas from the Shallow Gas Well Review Board and replaces the chief with a person representing the interests of surface owners of real property. Finally, it removes the Secretary of the Department of Environmental Protection and the Chief of the Office of Oil & Gas from the Conservation Commission and replaces them with the state Geologist and a person representing the interests of surface owners of real property and provides a new section to regulate pooling of gas from horizontal shallow wells.


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


    §22C-9-7a is new; therefore, it has been completely underscored.

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