West Virginia Code of State Rules Agency 35 - Oil And Gas
I. Purpose of Agency 35 – Oil and Gas
Agency 35 regulates the exploration, drilling, production, and plugging of oil and gas wells in West Virginia. Its purpose is to:
Protect public health and safety, including groundwater, surface water, and landowners.
Ensure proper development and abandonment of oil and gas resources.
Implement the statutory authority granted under West Virginia Code §§22-6A-1 et seq. (Oil and Gas Well Act) and related statutes.
Define penalties, inspection procedures, and reporting requirements for operators.
Legal authority: The West Virginia Department of Environmental Protection (DEP) administers these rules through the Office of Oil and Gas.
II. Structure of Agency 35
Agency 35 is organized into multiple series, each covering a different aspect of oil and gas regulation:
1. Series 1 – General Provisions
Defines key terms: “well,” “operator,” “waste,” “plugging,” “leaseholder.”
Establishes jurisdiction and scope of regulatory authority.
Legal impact: These definitions are critical in litigation, as enforcement often hinges on whether a well or activity falls under Agency 35’s authority.
2. Series 2 – Permitting
Covers well permits, modifications, and transfers.
Operators must obtain permits before drilling, recompletion, or reworking a well.
Requires:
Proof of bonding
Maps and reports
Compliance with environmental rules
Legal significance: Courts often defer to the DEP’s interpretation of permit rules unless the agency exceeds statutory authority.
3. Series 3 – Well Construction and Drilling
Sets standards for:
Casing and cementing
Drilling procedures
Safety and monitoring
Protects groundwater and surrounding properties.
Case relevance: Disputes often arise when an operator allegedly fails to meet construction standards, causing environmental damage or trespass claims.
4. Series 4 – Production and Waste Management
Regulates:
Flow measurement
Production reporting
Handling of waste fluids, drilling mud, and byproducts
Operators must prevent waste, spills, or contamination.
Violations can trigger administrative penalties or civil liability.
5. Series 5 – Plugging and Abandonment
Requires proper plugging of inactive or depleted wells.
Sets minimum standards for restoring land and preventing environmental hazards.
Bonds are required to ensure compliance.
Legal significance: Failure to plug properly can result in enforcement actions by DEP and liability to landowners.
6. Series 6 – Inspections and Enforcement
Defines inspection rights, reporting obligations, and penalty structures.
Operators may be fined for:
Improper permits
Environmental violations
Safety violations
Due process requirement: The operator is entitled to notice and the opportunity to contest enforcement actions.
7. Series 7 – Special Conditions
Covers high-risk areas, coalbed methane wells, or unconventional drilling (e.g., fracking).
Includes additional monitoring, notification, and safety measures.
III. Case Law Involving Agency 35
West Virginia courts have addressed disputes involving Agency 35 primarily in three areas:
1. Permit and Regulatory Authority
Principle: Courts defer to DEP/Agency 35 on permitting and operational standards if rules are within statutory authority.
Example: Operators challenged permit denials or modifications. Courts upheld the agency when rules protect public safety and the environment.
Key case themes:
Agency rules are valid if reasonably related to statutory objectives.
Agency discretion is broad, but not unlimited.
2. Environmental Compliance and Negligence
Cases often involve claims of:
Groundwater contamination
Surface pollution
Improper plugging of abandoned wells
Courts reference Agency 35 standards as the benchmark for negligence.
Operators failing to comply may be liable to:
The state (civil penalties)
Landowners (tort claims)
3. Bonding and Financial Responsibility
Operators required to post financial assurance bonds to cover plugging and environmental remediation.
Disputes occur when:
Bonds are inadequate
Operators declare bankruptcy
Courts have enforced the bonding requirement strictly to protect landowners and the state.
Case law establishes that Agency 35 may act to plug wells using the bond funds and then recover costs from operators if necessary.
4. Operator Liability for Abandoned Wells
West Virginia courts have repeatedly held:
The DEP has authority to plug wells if operators fail to act.
The state can recover costs from the original operator.
These cases confirm that Agency 35’s rules on plugging and abandonment are legally enforceable even decades after drilling operations have ceased.
IV. Key Legal Themes
Agency Deference: Courts usually defer to DEP’s expertise in interpreting Agency 35 rules.
Strict Operator Liability: Operators are responsible for well integrity, environmental safety, and plugging obligations.
Standards as Legal Benchmark: Agency 35 rules often serve as the standard of care in negligence and environmental lawsuits.
Due Process: Operators are entitled to notice and hearing before penalties, but courts rarely overturn enforcement if procedures are followed.
Public Protection is Paramount: Environmental safety outweighs minor procedural mistakes or operator preferences.
V. Practical Implications for Operators
Always obtain permits before drilling or reworking wells.
Follow construction, safety, and waste management rules strictly.
Keep bonds current for potential plugging obligations.
Document all operations to defend against administrative or civil claims.
Understand that Agency 35 standards are enforceable in courts and can serve as a benchmark in tort liability cases.
VI. Summary
West Virginia CSR Agency 35 – Oil and Gas is a comprehensive regulatory framework for the oil and gas industry. Its rules:
Protect the environment and public safety
Set enforceable technical and operational standards
Provide legal backing for penalties, enforcement, and civil claims
Courts consistently uphold Agency 35 rules as long as DEP acts within statutory authority and follows procedural due process, and operators failing to comply may face both administrative and civil liability.
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