Title 35 · WY

35-11-314 through 35-11-320. When used in W.S. 35-11-314

Citation: Wyo. Stat. § 35-11-314

Section: 35-11-314

35-11-314 through 35-11-320. When used in W.S. 35-11-314 through 35-11-320:

(i) "Corresponding rights" means the right of all pore space owners in a unit area who will be affected by unit operations, either now or in the future, to concurrently share in the economic benefits generated by using the pore space in the unit area;

(ii) "Economic benefits" means the equitable proportionate share of all financial proceeds due to the pore space owners in a unit area based upon each individual pore space owner's contribution of pore space storage capacity to a unit area;

(iii) "Unit area" means the pore space lying within the geologic formation proposed to be operated and may include the area of geologic sequestration for one (1) or more injection wells.

35-11-315. Unitization of geologic sequestration sites; agreements; application for permit; contents.

(a) Any interested person may file an application with the Wyoming oil and gas conservation commission requesting an order providing for the operation and organization of a unit of one (1) or more parts as a geologic sequestration site and for the pooling of interests in pore space in the proposed unit area for the purpose of conducting the unit operation. The application shall contain:

(i) A copy of any draft permit or permit issued by the department allowing geologic sequestration or any application for such permit;

(ii) A description of the pore space proposed to be included in the unit area and the corresponding surface lands;

(iii) The names, as disclosed by the conveyance records of the county or counties in which the proposed unit area is situated, and, if federal pore space is proposed to be included in the unit area, the status records of the district office of the bureau of land management of:

(A) All persons owning or having an interest in the surface estate or pore space estate in the unit area, including mortgages and the owners of other liens or encumbrances; and

(B) All owners of the surface estate or pore space estate not included within but that are located not greater than one-half (1/2) mile from a boundary of the proposed unit area.

(iv) The addresses of all persons and owners identified in subparagraphs (iii)(A) and (B) of this subsection, if known. If the name or address of any person or owner is unknown, the application shall so indicate;

(v) A statement of the type of operations contemplated in order to effectuate the purposes specified in W.S. 35-11-314 to comply with underground injection control class VI well and other environmental requirements, to facilitate the use and production of Wyoming energy resources or to utilize pore space for geologic sequestration;

(vi) A proposed plan of unitization applicable to the proposed unit area which the applicant considers fair, reasonable and equitable and which shall include provisions for determining the pore space to be included within the unit area, the appointment of a unit operator and the time when the plan is to become effective; (vii) A proposed plan for determining the quantity of pore space storage capacity to be assigned to each separately owned tract within the unit area and the formula or method by which each separately owned tract will be allocated the economic benefits generated by use of pore space in the unit area;

(viii) A proposed plan for providing for economic benefits for the use of pore space within the unit area;

(ix) A proposed operating plan providing the manner in which the unit area will be supervised and managed and, if applicable, costs allocated and paid, unless all owners within the proposed unit area have joined in executing an operating agreement or plan providing for such supervision, management and allocation and, if applicable, payment of costs. All operating plans shall comply with all applicable underground injection control class VI well and other environmental requirements;

(x) The location of any identified and existing wells, whether previously plugged or not, that may require evaluation monitoring or corrective action as part of the proposed geologic sequestration in the unit area.

35-11-316. Unitization of geologic sequestration sites; hearings on application, order; modifications.

(a) Upon receipt of an application under W.S. 35-11-315, the Wyoming oil and gas conservation commission shall promptly set the matter for hearing, and in addition to any notice otherwise required by law or the commission's rules, shall cause the applicant to give notice of the hearing, specifying the time and place of hearing, and describing briefly its purpose and the land and pore space affected, to be mailed by certified mail at least thirty (30) days prior to the hearing to all persons whose names and addresses are required to be listed in the application.

(b) After considering the application and hearing the evidence offered in connection therewith, the Wyoming oil and gas conservation commission shall enter an order setting forth the following findings and approving the proposed plan of unitization and proposed operating plan, if any, if the commission finds that:

(i) The material allegations of the application are substantially true; (ii) The purposes specified in W.S. 35-11-314 will be served by granting the application;

(iii) The application outlines operations that will comply with applicable underground injection control class VI well permits, draft permits or any applications for permits and any other environmental requirements. The commission may rely on a class VI well permit issued by the department to make the findings required by this paragraph;

(iv) Granting the application will facilitate the use and production of Wyoming energy resources or will utilize pore space for geologic sequestration;

(v) The quantity of pore space storage capacity, and method used to determine the quantity of pore space storage capacity allocated to each separately owned tract within the unit area represents, so far as can be practically determined, each tract's actual share of the pore space included within the unit area;

(vi) The method for the allocation of economic benefits provided by the use of pore space within the unit area between pore space owners; and between pore space owners and the unit operator or others is fair and reasonable. For purposes of this paragraph, federal injection fees, federal lease payments and other consideration derived from federal leases shall not be considered;

(vii) The method for providing for economic benefits from the use of pore space in the unit area is fair and equitable and is reasonably designed to maximize the use of the pore space;

(viii) Other requirements specified by rules or regulations adopted by the oil and gas conservation commission have been met.

(c) No order of the Wyoming oil and gas conservation commission authorizing the commencement of unit operations shall become effective until the plan of unitization has been signed or in writing ratified or approved by those persons who own at least eighty percent (80%) of the pore space storage capacity within the unit area. If such consent has not been obtained at the time the commission's order is made, the commission shall, upon application, hold supplemental hearings and make findings as may be required to determine when and if the consent will be obtained. The commission shall require the applicant to give notice of a supplemental hearing by regular mail at least thirty (30) days prior to the hearing to each person owning interests in the pore space in the proposed unit area whose name and address was required by W.S. 35-11-315(a) to be listed in the application for the unit operations. If the required percentages of consent have not been obtained within a period of six (6) months from and after the date on which the order of approval is made, the order shall be ineffective and revoked by the commission, unless, for good cause shown, the commission extends that time. Any interested person may file an application with the Wyoming oil and gas conservation commission requesting an order applicable only to the proposed unit area described in the application which shall provide for the percentage of approval or ratification to be reduced from eighty percent (80%) to seventy-five percent (75%). The application shall contain the information required by W.S. 35-11-315(a) and any order of the commission entered pursuant to the application shall comply with subsection (b) of this section. Notice of the hearing on the application shall be given in the same manner and to the same persons as required by subsection (a) of this section. If the commission finds that negotiations were being conducted since July 1, 2009, or have been conducted for a period of at least nine (9) months prior to the filing of the application, that the applicant has participated in the negotiations diligently and in good faith, and that the percentage of approval or ratification required by this subsection cannot be obtained, the commission may reduce any percentage of approval or ratification required by this section from eighty percent (80%) to seventy-five percent (75%). The order shall affect only the unit area described in the application and shall operate only to approve the proposed plan of unitization and proposed operating plan and to reduce the required percentage of approval or ratification thereof and shall not change any other requirement contained in this section.

(d) From and after the effective date of an order of the Wyoming oil and gas conservation commission entered under the provisions of this section, the operation of the unit area defined in the order by persons other than the unit operator or persons acting under the unit operator's authority, or except in the manner and to the extent provided in the plan of unitization approved by the order, shall be unlawful and is hereby prohibited.

(e) Unless otherwise provided in this section, an order entered by the Wyoming oil and gas conservation commission under this section may be amended in the same manner and subject to the same conditions as an original order or previous agreement: provided, no amendatory order shall change the assignments of pore space storage capacity between existing pore space owners in the unit area as established by the original order or previous agreement, except with the written consent of those persons who own at least eighty percent (80%) of the pore space storage capacity in the unit area, nor change any allocation of costs as established by the original order or previous agreement, except with the written consent of those persons who own at least eighty percent (80%) of the unit pore space storage capacity. If consent has not been obtained at the time the commission order is made, the commission shall, upon application, hold supplemental hearings and make findings as may be required to determine when and if such consent will be obtained. The commission shall require the applicant to give notice of a supplemental hearing by regular mail at least thirty (30) days prior to the hearing to each person owning interests in the unit area whose name and address was required by the provisions of W.S. 35-11-315(a)(iii) to be listed in the application for the unit operations. If the required percentages of consent have not been obtained within a period of six (6) months from and after the date on which the order of approval is made, the order shall be ineffective and revoked by the commission, unless, for good cause shown, the commission extends that time. Any interested person may file an application with the Wyoming oil and gas conservation commission requesting an order applicable only to the unit area described in the application which shall provide for the percentage of approval or ratification to be reduced from eighty percent (80%) to seventy-five percent (75%). The application shall contain the information required by W.S. 35-11-315(a) and any order of the commission entered pursuant to the application shall comply with subsection (b) of this section. Notice of the hearing on the application shall be given in the same manner and to the same persons as required by subsection (a) of this section. If the commission finds that negotiations were being conducted since July 1, 2009 or have been conducted for a period of at least nine (9) months prior to the filing of the application, that the applicant has participated in the negotiations diligently and in good faith, and that the percentage of approval or ratification required by this subsection cannot be obtained, the commission may reduce any percentage of approval or ratification required by this section from eighty percent (80%) to seventy-five percent (75%). The order shall affect only the unit area described in the application and operate only to reduce the required percentage of approval or ratification necessary for amending the assignment of pore space and shall not change any other requirement contained in this section.

(f) The Wyoming oil and gas conservation commission, upon its own motion or upon application, and with notice and hearing, may modify its order regarding the operation, size or other characteristic of the unit area in order to prevent or assist in preventing a substantial inequity resulting from operation of the unit, provided that no such modification may amend any permit issued under W.S. 35-11-313.

(g) Any owner of pore space within a geologic sequestration site who has not been included within a unitization application or order authorizing a unit under this section, may petition for inclusion in the unit area. The petition shall be filed with the Wyoming oil and gas conservation commission and shall describe the petitioner's legal entitlement to the pore space, the location of the pore space, whether the pore space is included within any permitting area applicable to the unit area and the bases for inclusion in the unit area. The petition shall be accompanied by a deposit of money sufficient to pay all costs of the inclusion proceedings. The commission shall require the petitioner to provide notice of the filing of the petition to all persons specified in the application for the unit area under W.S. 35-11- 315(a). The notice required under this subsection shall state the filing of the petition, the name of the petitioner, the location of the pore space, the action sought by the petitioner and any other information required by rule of the commission. Upon receipt of the petition and the provision of notice by the petitioner, the commission shall publish notice of a hearing, which shall describe how all persons specified in an application submitted under W.S. 35-11-315(a) may appear at a specified time and place and show cause, in writing or as otherwise provided by rules of the commission, why the petition should not be granted. The commission at the time and place mentioned in the notice shall proceed to hear the petition and all objections thereto and shall thereafter grant or deny the petition. The filing of the petition shall be deemed and taken as an assent by each and all petitioners to the inclusion in the unit of the pore space mentioned in the petition or any part thereof. If the petition is granted, the petitioner shall be considered to have been a member of the unit since its inception and, upon the payment of any costs paid by unit members, shall be entitled to a proportionate share of all economic benefits received by unit members since the inception of the unit provided that no unit modification affects any permit issued under W.S. 35-11-313. The oil and gas conservation commission shall adopt rules or orders providing for the fair and equitable determination of pore space storage capacity for each successful petitioner and the means by which successful petitioners shall be paid the economic benefits to which they are entitled under this subsection, including, if necessary, a reallocation of economic benefits among unit members.

(h) A certified copy of any order of the Wyoming oil and gas conservation commission entered under the provisions of this section shall be entitled to be recorded in the land records of the county clerk for the counties where all or any portion of the unit area is located, and the recordation shall constitute notice thereof to all persons.

(j) No provision of W.S. 35-11-314 through 35-11-319 shall be construed to confer on any person the right of eminent domain and no order for unitization issued under this section shall act so as to grant to any person the right of eminent domain.

(k) No order for unitization issued under this section shall:

(i) Act so as to grant any person a right of use or access to a surface estate if that person would not otherwise have such a right;

(ii) Diminish, impair or otherwise alter the dominance of the mineral estate over the surface estate and pore space interests;

(iii) Prohibit a mineral interest owner from developing the owner's minerals above or below the unit area.

(m) Orders for unitization issued under this section may accommodate and provide for the use of horizontal or directional wells that may penetrate the pore space of separate pore space estates for geologic sequestration purposes within the unit area.

35-11-317. Unitization of geologic sequestration sites; economic benefits; liens.

(a) No order of the Wyoming oil and gas conservation commission or other contract relating to a separately owned tract within the unit area shall be terminated by the order providing for unit operations, but shall remain in force and apply to that tract, its benefits, burdens and obligations, until terminated in accordance with the provisions thereof.

(b) Except to the extent that the parties affected agree, no order providing for unit operations shall be construed to result in a transfer of all or any part of the title to pore space or other rights in any tract in the unit area and no agreement or order shall operate to violate the terms and requirements of any permit applicable to pore space within the unit area.

35-11-318. Title to sequestered and injected carbon dioxide; definitions.

35-11-318. Geologic sequestration special revenue account.

(a) Geologic sequestration special revenue account.

(a) As used in this section and in W.S. 35-11-319, "injector" means a person applying for or holding a permit or certificate for geologic sequestration of carbon dioxide under W.S. 35-11-313.

(b) An injector shall:

(b) Geologic sequestration special revenue account.

(i) Have title to any carbon dioxide the injector injects into and stores underground or within a unit area;

(i) Geologic sequestration special revenue account.

(ii) Geologic sequestration special revenue account.

(ii) Hold title for any injected or stored carbon dioxide until the department issues a certificate of project completion as specified in W.S. 35-11-319.

(c) During any time the injector holds title to carbon dioxide under this section, the injector shall be liable for any damage the injected or stored carbon dioxide may cause, including damage caused by carbon dioxide that escapes or is released from where it is being stored underground.

(d) Geologic sequestration special revenue account. 35-11-319. Certificate of project completion; release; transfer of title and custody.

(a) After all carbon dioxide injections underground or into pore space are completed as provided by a permit issued under W.S. 35-11-313 and upon application by the injector holding title to the carbon dioxide under W.S. 35-11-318, the department may issue a certificate of project completion. The department shall only issue a certificate upon satisfaction of the conditions imposed under subsections (b), (c) and (d) of this section and after providing public notice of the application, an opportunity for public comment and a public hearing on the application.

(b) A certificate of project completion shall not be issued until at least twenty (20) years after carbon dioxide injections end.

(c) A certificate of project completion shall not be issued until the injector with title to the carbon dioxide establishes to the satisfaction of the department that:

(i) The injector is in full compliance with all laws governing the injection and storage of the carbon dioxide;

(ii) The injector has addressed any pending claims regarding the injection and storage of the carbon dioxide;

(iii) The underground place or pore space where the carbon dioxide was injected or stored is expected to no longer expand vertically or horizontally and poses no threat to human health, human safety, the environment or underground sources of drinking water;

(iv) The stored or injected carbon dioxide is unlikely to cross any underground or pore space boundary and is not expected to endanger any underground source of drinking water or otherwise endanger human health, human safety or the environment;

(v) All wells, equipment and facilities to be used in maintaining and managing the stored carbon dioxide are in good condition and will retain mechanical integrity;

(vi) The injector has plugged any injection wells and has completed all reclamation required by the department. (d) Upon the issuance of a certificate of project completion under subsection (a) of this section:

(i) In exchange for assuming responsibility and liability for the stored carbon dioxide as provided in this section, title to the stored or injected carbon dioxide, and any facilities used to inject or store the carbon dioxide, without payment of any compensation, shall be transferred to the state;

(ii) Title acquired by the state includes all rights, and interests in, and all responsibilities associated with, the stored or injected carbon dioxide;

(iii) Primary responsibility and liability for the stored or injected carbon dioxide shall be transferred to the state, provided that liability to the state shall not result in the payment of any damages in excess of the balance of the Wyoming geologic sequestration special revenue account created by W.S. 35-11-320(a);

(iv) The injector and all persons who generated any injected or stored carbon dioxide shall be forever released from all regulatory requirements associated with the continued storage and maintenance of the injected carbon dioxide;

(v) Any bond or financial assurance submitted to the department under W.S. 35-11-313 through 35-11-317 shall be released;

(vi) The state, through the department, shall assume responsibility to manage and monitor the stored carbon dioxide until such time when the federal government assumes responsibility for the long-term monitoring and management of stored carbon dioxide.

35-11-320. Geologic sequestration special revenue account.

(a) There is created the Wyoming geologic sequestration special revenue account. The account shall be administered by the director and all funds in the account shall be transmitted to the state treasurer for credit to the account and shall be invested by the state treasurer as authorized under W.S. 9-4- 715(a), (d) and (e) in a manner to obtain the highest return possible consistent with the preservation of the corpus. Any interest earned on the investment or deposit of monies into the fund shall remain in the fund and shall not be credited to the general fund. All funds in the account are continuously appropriated for use by the director consistent with this section.

35-11-320. Geologic sequestration special revenue account.

(b) The account shall consist of all monies collected by the department to measure, monitor and verify Wyoming geologic sequestration sites following project completion certification, release of all financial assurance instruments and termination of the permit. The department shall promulgate rules necessary to collect monies in an amount reasonably calculated to pay the costs of measuring, monitoring and verifying the sites.

35-11-320. Geologic sequestration special revenue account.

(i) The testing, monitoring and long-term inspections of geologic sequestration sites;

(ii) Remediation of mechanical problems associated with remaining wells and infrastructure;

(iii) Plugging and abandoning monitoring wells;

(iv) All future claims associated with the release of carbon dioxide from the geologic sequestration sites following project completion certification, release of all financial assurance instruments and termination of the permit.

35-11-320. Geologic sequestration special revenue account.

(d) The existence, management and expenditure of funds from this account shall not constitute a waiver by the state of Wyoming of its immunity from suit, nor does it constitute an assumption of any liability by the state for geologic sequestration sites. ARTICLE 4 - LAND QUALITY

35-11-401. Compliance generally; exceptions.

(a) No mining operation or operation by which solid minerals are intended to be extracted from the earth shall be commenced after the effective date of the act, except in accordance with its requirements. It is recognized these measures are performed in the public interest and constitute an expense to the operator, and while this act applies to all mining operations, no operator shall be compelled to perform at his own expense measures required under this act with respect to operations that were completed or substantially completed prior to the effective date of this act. Nothing in this act shall provide the land quality division regulatory authority over oil mining operations as defined in W.S. 30-5-104(d)(ii)(F).

(b) All surface or underground mining operations operating at the date of enactment of this statute shall have a period of one (1) year within which to fulfill the requirements of this act. This period may be extended at the discretion of the council if the administrator has been unable to review and evaluate all operations that are presently operating under a permit issued by the state land commissioner in compliance with the "Open Cut Land Reclamation Act of 1969".

(c) An operator presently operating under a permit issued by the state land commissioner in accordance and in full compliance with the Open Cut Land Reclamation Act of 1969 will be issued a permit upon submission to the administrator of:

(i) The information, maps and other exhibits required by this act; and

(ii) A reclamation plan which fulfills all of the requirements of this act and is reviewed by the advisory board.

(d) Within two (2) months following the final approval of a state program pursuant to Section 503 of P.L. § 95-87, all operators of surface coal mining operations operating under a permit issued in accordance with the terms of this act shall apply for a new mining permit covering those lands expected to be mined or reclaimed after eight (8) months from state program approval. Within eight (8) months from the date of state program approval, the administrator shall approve or deny an application for a surface coal mining permit. No person shall engage in or carry out surface coal mining operations unless the person has first obtained a permit pursuant to this section except as hereafter provided. A person conducting operations consistent with this act may continue operating beyond eight (8) months from state program approval if an application for a permit has been filed in accordance with this act but the administrator's decision on the application has not been rendered.

(e) The provisions of this article shall not apply to any of the following activities:

(i) Building or expansion of utilities, soil conservation conveyances and foundation excavations for the purpose of constructing buildings and other structures not used in mining operations;

(ii) Excavations other than for the extraction of coal by an agency of federal, state or local government or its authorized contractors for highway and railroad cuts and for the purpose of providing fill, sand, gravel and other materials for use in connection with any public project if reclamation requirements of federal, state or local governments are consistent with all provisions of this act or regulations promulgated thereunder. Excavations for the extraction of coal as an incidental part of federal, state or local government financed highway or other construction shall be conducted in accordance with regulations established by the council;

(iii) The extraction of sand, gravel, dirt, scoria, limestone, dolomite, shale, ballast or feldspar by a landowner for his own noncommercial use from land owned or leased by him;

(iv) Archaeological excavations;

(v) Other surface mining operations which the administrator determines to be of an infrequent nature and which involve only minor surface disturbances;

(vi) Limited mining operations, whether commercial or noncommercial, for the removal of sand, gravel, scoria, limestone, dolomite, shale, ballast or feldspar from an area of fifteen (15) acres or less of affected land, excluding roads used to access the mining operation, if the operator has written permission for the operation from the owner and lessee, if any, of the surface. The operator shall notify the land quality division of the department of environmental quality and the inspector of mines within the department of workforce services of the location of the land to be mined and the postal address of the operator at least thirty (30) days before commencing operations. A copy of the notice shall also be mailed to all surface owners located within one (1) mile of the proposed boundary of the limited mining operation at least thirty (30) days before commencing operations. The operator shall notify the land quality division of the department of environmental quality of the date of commencement of limited mining operations within thirty (30) days of commencing operations. Limited mining operations authorized under this paragraph are subject to the following:

(A) That the affected lands shall not be within three hundred (300) feet of any existing occupied dwelling, home, public building, school, church, community or institutional building, park or cemetery unless the landowner's consent has been obtained;

(B) Before commencing any limited mining operations, the operator shall file a bond to insure reclamation in accordance with the purposes of this act in the amount of two thousand dollars ($2,000.00) per acre, except for quarries for which the bond amount shall not exceed three thousand dollars ($3,000.00) per acre of affected land including roads used to access the mining operation. Within ninety (90) days after limited mining operations commence, the administrator may require the operator to post an additional bond per acre of affected land if he determines that such amount is necessary to insure reclamation. The operator shall post the additional bond not later than thirty (30) days after receipt of such notification;

(C) After the limited mining operations have ceased, the operator shall notify the administrator of such fact in the operator's next annual report and commence reclamation and restoration in compliance with the rules and regulations of the land quality division of the department of environmental quality. The rules and regulations for reclamation shall at all times be reasonable;

(D) Immediate reclamation will not be required if the landowner advises the department in writing of his intent to further utilize the product of the mine, and if he assumes the obligation of reclamation;

(E) The limited mining operations shall be terminated if the operator does not commence operations within five (5) years as noted in the annual report following notification to the land quality division of the department of environmental quality under this paragraph;

(F) Limited mining operations may continue for not more than five (5) years from the date of commencing operations unless a notification to extend operations is submitted to the land quality division administrator. Operators shall submit a notification of extension for every subsequent five (5) year period with the annual report;

(G) Limited mining operations shall be subject to rules governing the use of explosives pursuant to W.S. 35-11- 402(d).

(vii) Repealed By Laws 2013, Ch. 44, § 2.

(viii) Repealed By Laws 2013, Ch. 44, § 2.

(ix) Repealed By Laws 2013, Ch. 44, § 2.

(f) In promulgating regulations to implement this section the administrator and director shall consider:

(i) The nature of the class, type, or types of activities involved;

(ii) Their magnitude (in tons and acres);

(iii) Their potential for adverse environmental impact; and

(iv) Whether the class, type, or types of activities are already subject to an existing regulatory system by state or local government or an agency of the federal government.

(g) A single permit may be issued to all county or other local governmental entities of the state to operate noncontiguous facilities in compliance with the statutes.

(h) A single permit may be issued for mining of noncontiguous minerals deposits at the discretion of the administrator in compliance with the statutes.

(j) The council, upon recommendation from the advisory board through the administrator and director, may modify or suspend certain requirements of W.S. 35-11-406(a), (b)(i) through (xx), (d), (f) and (g) by rules and regulations, for surface mining operations involving not more than thirty-five thousand (35,000) yards of overburden, excluding topsoil, and ten (10) acres of affected land in any one (1) year, if the application requirements ensure reclamation in accordance with the purposes of this act. Roads used to access a mining operation permitted under this section shall be excluded from the annual ten (10) acres of affected land limit, but shall be included in the permit and bonded for reclamation liability.

(k) An operator conducting operations pursuant to W.S.