Final Coal Operator Requirements for Mining Adjacent to Gas Facilities Filed May 7, 2010

The West Virginia Board of Coal Mine Health and Safety filed with the West Virginia Secretary of State a final rule on May 7, 2010, setting forth requirements for mining adjacent to gas facilities. The requirements apply to any new surface mining operation seeking its initial permit on or after August 5, 2010, and concern notification of excavation work, including blasting, near oil and gas wells or natural gas pipelines, replacement of natural gas pipeline markers, restrictions on tree removal, mining, excavation, and equipment/vehicle operation within 50 feet of gas facilities, and pipeline awareness training for mine personnel and contractors. For the full text of the final rule titled “Rules and Regulations Governing Surface Areas on Mine Property and Limitations on Mining Adjacent to Gas Facilities,” 36 CSR 27, click here.

 

The final rule imposes upon the holder of an active coal mining permit a duty to provide notice to oil and gas operators with known wells or natural gas pipelines located in the “Designated Mining Area” of the commencement and completion of any excavation work. “Designated Mining Area,” a defined term, refers to that area of real property subject to a coal permit where vegetation, timber, topsoil, or overburden will be moved, removed, or placed within the following twelve months. The notice must include: (1) a copy of the mine plan permit maps; (2) the general location of all oil and gas wells and pipelines known to the coal mining permit holder or operator, including any GPS or other survey information; (3) the contact information for the mine where the work will occur; and (4) the location of any staffed guard gate or entrance for the mine. If there are any changes in the area designated for mining or excavation, the contact information for the mine, or mine access points, the coal permit holder must notify all oil, gas, or natural gas pipeline operators with pipelines in the area.  Further, when an oil and gas company or pipeline operator notifies the mine office or staffed guard gate of entry onto the mining area, the coal mine operator must tell them about any blasting schedules and times, where mining operations are occurring, and any new known safety hazards.

 

Under the final rule, the coal permit holder must replace all natural gas pipeline markers that are disturbed, damaged, or destroyed. The rule also imposes restrictions on tree removal activities within 50 feet of a pipeline and restrictions on mining, excavation, and equipment/vehicle operation within 50 feet of a pipeline or gas well. For tree removal activities within 50 feet of a pipeline, the rule requires that the pipeline be buried more than 2 feet below the surface and specifies that fallen trees be picked up with a grapple type excavator. For mining, excavation, and equipment/vehicle operation within 50 feet of a pipeline or gas well, adequate safeguards must be provided for protection of gas facilities and the safety of miners. Before beginning mining or excavation work within 50 feet of any known active oil and gas line or well, the coal permit holder must: (1) notify the regional office of the Office of Miners’ Health, Safety and Training; and (2) obtain the written approval of the affected oil and gas well and/or pipeline operators and the Director. This approval requirement does not apply, however, to mining and excavation within 50 feet of any known active oil and gas well that is approved in accordance with the statutory provisions concerning underground mines. Under the rule, a pipeline is deemed active unless the line has been cut, purged and capped on each end, and a gas well is deemed active unless the well has been plugged below the elevation of the intended work area. Documentation to show the condition of the well is required.

 

Pipeline awareness training must be incorporated as part of training sessions for newly employed experienced miners and contractors, annual retraining, and hazard training. In addition, a special safety talk must be conducted with all persons on the property concerning pipelines and gas well locations immediately after gas lines have been located. Safety talks on pipeline locations must be held on a quarterly basis, and safety talks on gas line and gas well locations must be conducted before moving into a new work area.

 

This rule and its predecessor versions were promulgated by the Board of Coal Mine Health and Safety in response to a fatal accident resulting from a dozer cutting into an active gas line at a mine site in Boone County, West Virginia, in 2006. Investigation revealed that the gas line was unmarked for a distance of approximately 2,000 feet in both directions. The Board responded in 2008 by amending 36 CSR 27 to add Section 36-27-14. The 2008 rule required oil, gas, and utility companies to mark gathering lines and to notify the owner of record or the occupant of coal property when they expected to enter onto the property and required coal companies to conduct gas line awareness training for their employees and contractors. The rule was enjoined by the Circuit Court of Kanawha County, West Virginia, on November 14, 2008. The Board promulgated an amended version of Section 36-27-14 that took effect January 1, 2009. The Circuit Court of Kanawha County, West Virginia, stayed the enforcement of those rules effective January 27, 2009. The enjoined rules raised questions as to the enforcement authority of the Director of the Office of Miners’ Health, Safety and Training over oil and gas wells and pipelines. To provide an interim resolution of the jurisdictional issues, the Office of Miners’ Health, Safety and Training filed a emergency rule and a proposed rule governing the marking of gas lines on mine property in West Virginia, and the West Virginia Department of Environmental Protection (WV DEP), which has jurisdiction over oil and gas wells and pipelines, filed related rules.    The dispute was finally resolved with the May 7, 2010 final rule and amendments to the related WV DEP rule titled “Oil and Gas Wells and Other Wells,” 35 CSR 4, filed by the WV DEP’s Office of Oil and Gas with the West Virginia Secretary of State on April 15, 2010. The 35 CSR 4 amendments address obligations of gas operators operating in “Designated Mining Areas” and pipelines in such areas, including requirements for pipeline markers. For the full text of 35 CSR 4, click here.

 

This e-alert was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, click here or contact the author at 304-340-1200 or galelea@jacksonkelly.com.