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Steptoe & Johnson PLLC: West Virginia House Judiciary Amends Horizontal Well Legislative Rule

By Armando F. Benincasa and G. Kurt Dettinger 

On April 9, 2013, the House Judiciary Committee amended SB 243, the West Virginia Department of Environmental Protection ("WVDEP") rules bill which includes the promulgation of permanent legislative rules, 35 Code of State Rules, Series 8, regarding horizontal well development in West Virginia. The rule is mandated by provisions of the West Virginia's Natural Gas Horizontal Well Control Act, W.Va. Code Chapter 22, Article 6A.

The amendments passed by the committee will require the well operator to provide a copy of the well site safety plan to surface owners and any water purveyor or surface owner entitled to notice and water testing as provided in section 15 of the rule and require that water management plans be available and be maintained at the site of each withdrawal point and, further, that such plans must be made available not only to the State, but also any member of the general public, upon request.

Finally, in the continuing controversy regarding the disclosure of the contents of drilling fluids used in the fracturing process, the committee amended the rule and removed requirements that prior to disclosure of the content of drilling fluids to a health care provider that it must enter into a confidentiality agreement with the well service provider or, in the case of emergency, verbally agree not to disclose the information provided except as may be needed to diagnose illnesses. The rule now only states that the information provided to a health care provider may be a trade secret and that improper disclosure of the information could subject the provider to potential liability.

Other smaller amendments were also adopted and can be reviewed by clicking on the following link for the latest version of SB 243.

The bill now moves forward for consideration by the House and has been placed on the Special Calendar for first reading on April 10, 2013. Assuming passage of the amended legislation in the House of Delegates, the Senate will be requested to concur in or reject the amendments possibly setting the stage for a conference committee should the Senate reject the amendments which would decide the fate of the rule on the last day of the session, Saturday, April 13, 2013. 

Armando F. Benincasa concentrates his practice in the areas of energy law, environmental law, environmental litigation, and administrative law. G. Kurt Dettinger focuses his practice in the areas of energy law, energy and financing transactions and government relations. He joined the firm after serving as General Counsel to West Virginia Gov. Earl Ray Tomblin. 

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