Joint Judiciary Committee Minutes for Meeting November 26 & 27, 2007

Committee Meeting Information

November 26 & 27, 2007

Room 302, State Capitol

Cheyenne, Wyoming

Committee Members Present

Senator Tony Ross, Cochairman

Representative Ed Buchanan, Cochairman

Senator Bruce Burns

Senator Kathryn Sessions

Representative Deb Alden

Representative George Bagby

Representative Dan Dockstader

Representative Keith Gingery

Representative Erin Mercer

Representative Monte Olsen

Representative Lisa Shepperson

Representative Mary Throne

Committee Members Absent

Senator Ken Decaria

Senator Drew Perkins

Legislative Service Office Staff

John Rivera, Senior Staff Attorney

Dave Gruver, Assistant Director, Legal Services Division

Ian Shaw, Staff Attorney

Others Present at Meeting

Please refer to Appendix 1 to review the Committee Sign-in Sheet
for a list of other individuals who attended the meeting.

Executive Summary

The Committee met for two days in Cheyenne. The Committee considered draft legislation on court procedures, Board of Parole authority (both of which were approved for introduction in the 2008 Budget Session), and juvenile justice and carbon capture and sequestration. It also heard testimony on a post-conviction relief proposal. The Committee directed staff to work with interested parties to revise legislation on juvenile justice, valid court orders, carbon capture and sequestration, and to draft legislation on post-conviction relief for consideration by the Committee at the next meeting.

The Committee will meet again in January, 2008, to finalize consideration of remaining draft legislation.

Call To Order (November 26, 2007)

Chairman Ross called the meeting to order at 8:35 a.m. The minutes of the October, 2007 meeting, were approved The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.

08LSO-0120.W2, Court procedures-amendments

Ms. Holly Hansen, Supreme Court Administrator, explained the changes to the bill that the Committee had requested. She advised that W.S. 5-3-402, was revised to specify requirements for court reporters, but requested that the statute be further amended to clarify that official court reporters could be terminated at will, rather than for cause. Ms. Hansen said she would find out if official court reporters and private court reporters belong to the same organization.

Senator Burns moved, seconded by Representative Bagby, for the Committee to sponsor 08LSO-0120.W2 in the 2008 Budget Session. After an amendment was adopted, the motion carried on a roll call vote of 2 ayes, 1 no and 2 excused from the Senate Judiciary Committee, and 7 ayes, 1 no and 1 excused from the House Judiciary Committee. Senators Burns and Ross, and Representatives Alden, Bagby, Buchanan, Dockstader, Gingery, Mercer and Olsen voted aye. Senator Sessions and Representative Throne voted no. Senators Decaria and Perkins and Representative Shepperson were excused. An amendment was adopted to delete the proposed amendments to W.S. 5-3-402 and to insert a new section repealing that statute.

08LSO-0121.W2, Board of parole-authorizing reductions in length of parole

Mr. Pat Anderson, Executive Director, Board of Parole, distributed Appendix 3, an article entitled Unlocking America: Why and How to Reduce America's Prison Population. He said the article states that the "getting tough on crime" philosophy hasn't worked and the United States has the largest rate of imprisonment in the world without improving public safety. He then explained the bill before the Committee would address some of the recommendations contained in the article. He described the two types of "good time" allowances that could be awarded under W.S. 7-13-420. "Special" good time is authorized by rules promulgated by the Governor, under subsection (a) of that section. It reduces the minimum term of a sentence by 1/3 and cannot be taken away. "Regular" good time is statutory and reduces the maximum term of a sentence, but can be taken away for infractions committed by the inmate. Mr. Anderson sees this bill as a management tool to help parolees become more successful. About 36% of potential parolees refuse to apply for parole and this bill may become an incentive to help parolees return to the community successfully. It is better to have the inmates address their risk behaviors through parole than to let them simply "kill their time" and get released at the end of their sentences without controls. He also explained a proposed amendment to allow the elimination of good time allowances earned for technical violations.

Senator Burns moved, seconded by Representative Alden, for the Committee to sponsor 08LSO-0121.W2 in the 2008 Budget Session. After an amendment was adopted, the motion carried on a roll call vote of 3 ayes, 0 noes and 2 excused from the Senate Judiciary Committee, and 8 ayes, 0 noes and 1 excused from the House Judiciary Committee. Senators Burns, Ross and Sessions, and Representatives Alden, Bagby, Buchanan, Dockstader, Gingery, Mercer, Olsen and Throne voted aye. Senators Decaria and Perkins and Representative Shepperson were excused. An amendment was adopted to amend the bill on page 3-line 2, after "both" insert ", and may provide for the removal of previously earned good time allowances and the withholding of future good time allowances".

Post-conviction Relief

Mr. Matt Redle, Sheridan County and Prosecuting Attorney, presented the proposal on post-conviction relief based on DNA evidence (Appendix 4), developed with the participation of Ms. Kathryn Monroe, Director, Rocky Mountain Innocence Project (RMIP), other district attorneys, attorneys in the Attorney General's Office, Ms. Diane Courselle, University of Wyoming Law Professor, and Ms. Tina Kerin, Appellate Attorney, Public Defender's Office. Ms. Monroe participated by telephone from Salt Lake City because she was unable to make travel arrangements to attend the meeting in person.

Mr. Redle advised that consensus hasn't been reached, but there has been significant progress made on the bill. The Attorney General's Office is reviewing its position on the proposal. The prosecutors, the RMIP Professor Courselle and Ms. Kerin have reached agreement on the DNA provisions, except the third party DNA testing, non-DNA post-conviction relief and restitution provisions. Of the approaches that could have been taken, the proposal presents a retrial as the means to determine whether new DNA evidence is sufficient to overturn a conviction. Ms. Monroe advised that there have been 208 exonerations nationally on the basis of DNA evidence. Representative Gingery stated that without exoneration, restitution is moot. Mr. Redle replied that restitution was not a factor in choosing the retrial process for Committee consideration. Mr. Redle and Ms. Monroe indicated that consideration of a restitution provision is still occurring and believe that language relating to restitution for the factually innocent can be developed.

Representative Gingery expressed concern with the proposal in W.S. 7-12-303(3) that allows the Attorney General to become involved when a motion for retrial is filed. He believes that should be handled by the prosecuting attorney, unless the prosecuting attorney requests the participation of the Attorney General.

Ms. Kerin stated she doesn't believe there will be a large number of cases and the investigation and appeals would be handled by a collaborative effort involving the Public Defender's Office, the RMIP and the University of Wyoming Defender Aid Program. She expressed concern with the third party testing provision and the constitutional issues it presents, with respect to searches without probable cause and the potential for self-incrimination.

Representatives Buchanan and Dockstader were concerned with rushing legislation that isn’t fully developed. Senator Burns suggested have LSO draft the proposal with the third party testing as a proposed amendment. Chairman Ross reminded the Committee that this was proposed as a one year study, so it may be important to review a draft of the proposal even if the Committee doesn't approve the proposal for introduction. Staff was directed to draft the proposal in bill format for consideration by the Committee at its next meeting.

Juvenile Justice

08LSO-0208.W1, Community juvenile services

Chairman Ross explained that he, Representative Buchanan and Senator Sessions have been involved in numerous discussions with the Department of Family Services (DFS) on this issue since the last meeting. DFS has a proposal that may address some of the issues relating to funding for community juvenile services.

Mr. Tony Lewis, Director, DFS, explained that DFS has met with interested groups at several meetings to plan a unified approach to issues identified at earlier Committee meetings. Those discussions have led to the drafting of 08LSO-0208.W1. The disparities in the monies spent throughout the state are significant, but there is no indication that the amount of expenditures relate to the effectiveness of services provided.

Mr. Ric Paul, Chairman, State Advisory Council on Juvenile Justice, stated the Council's position is consistent with the report submitted to the Governor last year.

Mr. Joe Evans, Director, Wyoming County Commissioners Association (WCCA), said his agency has been the recipient of federal funds under the Juvenile Justice and Delinquency Prevention Act (JJDPA) since 1999 because the state has not been in compliance with the JJDPA. The WCCA endorses the plan proposed by DFS because it is the right thing to do. He also advised the federal funding to bring Wyoming into compliance is diminishing.

Ms. Beth Evans, (WCCA), described her efforts to explain the requirements of the JJDPA to all counties and to find out what's available for juvenile services on the local level. All counties provide some services, but in varying ways. As federal funds are ending, counties have tried to continue services without grant monies. The counties need a stable source of funding to provide staffing needs, transportation for juveniles, more appropriate holding facilities and training for staff, including judges and attorneys. The services available vary throughout the state. Less than 1/3 of children cited are actually detained. The other 2/3 of children cited are released or receive services through a county juvenile officer. Ms. Evans agrees with Chairman Ross that inter-agency blending of funds would work well to develop local services for juveniles. Mr. Lewis stated that the chief financial officers of the Departments of Family Services and Health agree that there may be sufficient funds in the system already, but those funds have to be used more efficiently. Senator Sessions thanked Ms. Evans for setting the stage to allow the state to move forward on juvenile justice issues.

Chairman Ross advised that he and Cochairman Buchanan will be meeting with district court judges and would like to present a bill on valid court orders to the judges if it is ready by that meeting.

Mr. Chuck Kratz, Director, Youth Services for Fremont County, distributed Appendix 5, describing the Youth Services of Fremont County juvenile offender intake process. The process operates with a single point of entry. Wyoming statistics are similar to national statistics with respect to the number of youth who wind up in juvenile or adult court, or in diversion services. Much of the intake is currently done by the peace officer on the street, but that doesn't include the use of assessments to determine what the best disposition of an individual matter should be. A single point of intake could be established as it is in Fremont County through the use of a probation officer to determine where the juvenile would be directed for appropriate services. What is missing in most of the state is a uniform assessment tool and process.

Mr. Bob Quick, Juvenile Services Administrator, DFS, said he is aware of 7 different instruments being used in the state to assess juveniles. Washington state has developed a tool, which is research based and has been used for 15 years. He would like to see that assessment instrument used more within Wyoming. The state would need to develop a software package to support that assessment instrument. DFS currently has 2 requests for proposals to develop the support software. No judges or prosecutors have expressed any problems with that instrument. Mr. Quick said DFS plans to look county-by-county to determine each county's or region's needs to develop a coherent system of juvenile services. Mr. Lewis added that Wyoming is leading the nation in out-of-home placements of juveniles. There should be enough funds in the system already if funding can be diverted from high cost placements to early intervention services. He doesn't know yet how much money will ultimately be needed. The Governor has indicated to Mr. Lewis that he is favorably disposed to the bill being presented to the Committee, but he is concerned with the pilot project proposal because a similar plan was proposed in 1998 without success due to a lack of funding. Now may be the time to proceed with early assessments and interventions because the funding for high cost placements of juveniles has increased four-fold since 1998 and the funding could be better used in the front end of the process rather than in the back end.

Ms. DeeAnn Roll, Uinta County Youth Services, stated that a local coalition has developed a juvenile intake process similar the process used in Fremont County. What was missing in Uinta County was a 48 hour holding room for juveniles to allow law enforcement officers to return to normal duties, while providing a safe shelter for the juvenile. Such a room has since been developed. Uinta County uses the Washington state assessment instrument.

Mr. Jeff Holsinger, President, and Mr. Heath Steel, Chief Operations Officer, Volunteers of America (VoA) for Wyoming and Montana, distributed Appendix 6, describing VoA's vision of what can be done to improve juvenile services in Wyoming. That vision is a work in progress because much of which it proposes already exists to some extent in some counties. VoA will begin receiving the funding from the Office of Juvenile Justice and Delinquency Prevention that had previously been administered by the WCCA. Mr. Holsinger believes there is a lack of strategic planning at the local level in the state.

Mr. Brian Christensen, 7^th Judicial District Deputy District Attorney, advised that Natrona County has 28 years experience with the local planning committee process. What the county needs is probation officers to ensure compliance with court orders and terms of probation. Giving circuit courts the authority to impose probation would be a big step in the right direction.

Mr. Scott Homar, 1^st Judicial District Attorney, had no comments to provide the Committee, but would answer any questions the Committee may ask him. He said that Laramie County has no assessment instrument, except for CHINS cases.

Mr. Byron Oedekoven, Director, Wyoming Association of Sheriffs & Chiefs of Police, reminded the Committee of the difficulty law enforcement officers have when making an arrest at 3:00 a.m. for the 30% of juveniles for whom a cite and release is not appropriate solution.

Senator Sessions stated there are 2 issues she would like to see in the proposed legislation. First, she would like a new section 3 in the bill to appropriate $5 million for the purposes specified in W.S. 14-9-107 and 108. The funding could come from a mixture of current funding in the Departments of Family Services, Health and Education to be distributed to communities that have acceptable juvenile services plans in place already and funds from the general fund for local juvenile services planning boards that have begun, but not completed, their planning process. She would like to include strong reporting and accountability provisions tied to the funding.

Ms. Gail Pacheco, Attention Homes, Inc., advised that Attention Homes is working with DFS to create a drug treatment intervention program for juveniles at Attention Homes, but has been advised that it would be necessary to amend W.S. 21-13-315 to receive funding from the state for services it proposes to provide under the program. She asked the Committee to consider such amendment.

Chairman Ross advised that 08LSO-0208.W1, appears to have too many problems with its approach, particularly with the pilot project concept, to be considered by the Committee. He suggested that the bill should be revised to codify in statute most of the provisions contained in the bill, rather than proceed with non-codified, limited pilot projects that will only delay proceeding forward as a state to address juvenile services throughout the state.

Meeting Recess

The Committee recessed at 5:40 p.m.

Call To Order (November 27, 2007)

Chairman Buchanan called the meeting to order at 8:35 a.m. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.

Carbon Capture and Sequestration

Representative Lubnau gave the Committee an overview of the carbon sequestration issue and explained prior action on this subject. Representative Lubnau explained that the topic has been divided into three, separate bills, including: 08LSO0080.W2, addressing void ownership issues; 08LSO0047.W5 containing the provisions on regulation of CO2 injection and, as drafted, names the Oil and Gas Conservation Commission (OGCC) as the agency primarily responsible for regulating the industry; and, 08LSO00230.W2 dealing with the issue of eminent domain. Representative Lubnau suggested that the ownership issue be addressed first followed by a discussion of regulation and, specifically, which agency should be responsible for regulating CO2 storage. Representative Lubnau stated that the eminent domain legislation should likely be set aside at this point and saved for a later legislative session. He did acknowledge, however, that eminent domain and condemnation would likely have to be addressed before a full CO2 sequestration infrastructure can be developed.

Mr. Ken Hamilton, Wyoming Farm Bureau, stated that his organization supports the approach of 08LSO0080.W2 and the ownership structure proposed therein. Mr. Jim Magagna, Wyoming Stock Growers Association, agreed that the surface owner should be the owner of subsurface voids. Mr. Magagna expressed concern that the term "void," if undefined, could be confused with mineral interests. Mr. Marion Loomis, Wyoming Mining Association, encouraged the Committee to consider limiting the scope of the bill to void ownership for CO2 sequestration to avoid affecting existing rights on deep disposal wells. He explained that deep injection wells are already the subject of specific regulation, legal rights and negotiated agreements. Mr. Loomis agreed to contact his constituents to obtain copies of agreements that touch upon an extractor's right to leave minerals or by-products behind as part of their extraction rights. The Committee discussed this topic in detail and concluded that many existing extraction agreements are interpreted to allow access and use of subsurface voids if incidental to the extraction process. The general conclusion was that extraction agreements deal with surface rights and payment for use and damage to those right, but that the agreements rarely explicitly address use of subsurface spaces and/or compensation for the use of such spaces. Mr. Don Likwartz, Oil and Gas Conservation Commission (OGCC), confirmed that this is the historical and current approach in Wyoming. Mr. Likwartz confirmed that there are Wyoming producers currently using lower subsurface voids for disposal while producing in layers directly above the storage. Currently, the right to extract is interpreted to allow storage in lower strata. Senator Nicholas then stated that there may need to be a provision in the law stating that the new law does not change the historical rights of mineral owners.

Senator Bebout expressed concern that making surface owners the owner of subsurface voids, generally, might make surface owners liable for all types of storage. Mr. Loomis opined that injectors hold the liability. Senator Ross suggested making the law effective only as the date of passage to avoid affecting prior rights. Senator Nicholas stated that the legislation probably does not impact the dominance of mineral estates and should not necessarily establish that the CO2 storage right is dominant to all other interests. CO2 storage rights are not necessarily going to be the equivalent of a mineral right and will not necessarily enjoy the same priorities. Representative Lubnau opined that the use of the void for CO2 sequestration could be made to give the injector as much access and use of the surface as is reasonably necessary. Representative Throne stated that the Committee should be careful not to confuse oil and gas rights with CO2 storage rights. CO2 storage is an issue of environmental regulation that is necessary to accomplish in a manner to avoid harming mineral production.

Representative Lubnau explained the legislation establishes the surface owner as the owner of subsurface voids to be consistent with the limited Wyoming law on the subject and the American Rule, which states that the surface owner owns the subsurface until he divides it. The majority of states follow the American Rule.

Senator Nicholas stated his belief that, unlike mineral estates, if you lease the void space for storage, it probably does not give you a dominant right over the surface estate. Representative Lubnau agreed that it is important not to confuse dominant mineral rights and storage rights. Wyoming's split estates law does not necessarily apply to storage rights. Representative Lubnau stated that, without the right of condemnation from an eminent domain law, the CO2 storage right holder probably would have few incidental rights and that he would need to contract to obtain those rights from the surface owner. Senator Nicholas suggested that the legislation be drafted not to affect the common law on ownership and that any instrument granting rights to use void space be required to specifically define incidental rights, such as rights to use the surface. He also suggested that such agreements be required to be made a matter of public record to avoid all confusion in subsequent transfers (particularly those many years from now).

Attorney General Salzburg advised that his staff was considering the legal implications of CO2 storage and would share their conclusions when completed.

The Committee then took public comment on 08-LSO-0047W.5, concerning the regulation of CO2 sequestration. No one from the audience chose to make any comment.

Senator Ross identified the primary issue as being which agency is best suited to regulate CO2 storage. He invited the OGCC, the State Engineer's Office and the Department of Environmental Quality (DEQ) to make statements.

Mr. Likwartz explained that the OGCC regulates many more injection wells than does DEQ. He believes that OGCC is the correct agency to regulate CO2 storage. He believes that there will not be a great number of wells to regulate and that his current staff is adequate and has the expertise to handle the issue. Currently, the OGCC handles 2-4 injection wells per month for enhanced oil recovery. He explained that the OGCC already works hand-in-hand with the DEQ, State Engineer and State Geologist on all issues that require their input and expertise. In response to Committee questions, Mr. Likwartz stated that the OGCC currently permits natural gas storage projects and enhanced oil recovery projects under EPA authority. These injection projects are monitored every 5 years to ensure no subsurface migration. He explained that DEQ has done this with coal-bed methane projects. Mr. Likwartz stated there are 223 injectors in Wyoming right now, injecting CO2 and water, and that there have been no migration problems to date. Mr. Likwartz stated that his staff has participated in at least one federal EPA meeting on CO2 sequestration. He believes that, since CO2 is not a hazardous waste, if someone was seeking a CO2 storage permit tomorrow, they would go to the OGCC since there is nothing in the DEQ regulations that would grant DEQ permitting authority.

Representative Tom Lockhart told the Committee that he attended an NCSL meeting where the issue of CO2 was discussed. There were approximately 15 states interested in the subject, mostly as it related to their coal industry. At that meeting, everyone was discussing the issue in terms of regulation by an oil and gas-type agency. Representative Throne stated her opinion that the DEQ UIC program has handled issues like this, including setting ground water standards and issuing discharge permits. Her opinion is that this is a long-term environmental issue, historically handled by DEQ. Senator Nicholas agreed that, if it is a process affecting ground water sources, then the DEQ has an interest. The OGCC handles issues around the well and the DEQ handles issues where water flows into other sources. The OGCC currently monitors injection wells to prevent environmental problems. Pursuant to Representative Gingery's questions, Mr. Likwartz explained that the OGCC regulates injection into zones of water that are not potable water. The DEQ regulates sources of contamination into useable quality water. The DEQ also regulates where there are multiple injectors into any water source.

Senator Nicholas asked Mr. Likwartz whether the legislation gives the OGCC enough authority to assess fees to pay for the costs of regulation. Mr. Likwartz stated that the legislation is sufficient except that it does not provide funding for the costs of closing injection wells and potential future liability. Mr. Likwartz feels that the OGCC may need a tax on CO2, similar to that placed on oil and gas. Mr. Likwartz explained that the OGCC gets no general funding and that it is mostly funded by these taxes and mill levies. Mr. Likwartz also discussed the need for sufficient bonding authority to pay for both injection-related issues and surface issues. Currently, there are instances in which separate bonding requirements are used for subsurface and surface issues. In response to a question by Senator Dockstader, Mr. Likwartz stated that the program could be run without requiring additional taxes. He does consider changing the statutes to assess a conservation tax on CO2 storage to be one option.

Mr. Kevin Frederich, DEQ, explained that the DEQ regulates all impacts on drinking water (defined as water with less than 100,000 parts per million of dissolved solids). The federal EPA administers a UIC program which contains provisions and standards for injection activities that affect water. Class 5 wells are experimental technology wells. This is the classification currently being used to permit experimental CO2 injection wells. At present, the EPA has given the Wyoming DEQ authority ("primacy") over the permitting of class 5 wells. The Wyoming OGCC has been given primacy over class 2 wells (those wells used for enhanced oil recovery and deep well storage). Mr. Frederich does not believe CO2 storage activities should be classified as class 2 wells because of the huge volumes of gas to be stored and the extremely long periods of time at issue. The EPA has issued Guidance #83 on the use of class 5 wells as the appropriate classification for studying CO2 long-term storage (Appendix 7). At this time, the OGCC is not allowed by the EPA to permit class 5 wells. The EPA only gives primacy to administer a class of wells after a state agency meets a number of stringent criteria.

Mr. Frederich stated the DEQ has received no applications for CO2 injection. However, DEQ personnel have attended several EPA workshops on CO2 sequestration. Further, the DEQ is currently working on rules and proposed regulations to deal comprehensively with CO2 sequestration. Those rules and regulations should be out for public comment in the summer of 2008. When asked by Representative Gingery about the process for getting EPA's permission to have the OGCC permit class 5 wells, Mr. Frederich stated that the process would be difficult since the EPA has been reluctant to parcel out different wells or classes to different state agencies. Representative Throne explained some technical details of the process.

Upon questioning by Senator Ross, Mr. Frederich stated that the DEQ is willing to assume regulatory responsibility for CO2 sequestration. The DEQ already coordinates with the U.S. Geological Survey and the OGCC. The DEQ specifically works with the OGCC to determine whether a well under class 2 is exempt from DEQ regulation and the DEQ reviews all class 2 well applications.

Representative Lockhart questioned Mr. Frederich about EPA's study of CO2 sequestration. Representative Lockhart stated his concern that perhaps the Wyoming DEQ cannot do much on this issue until it knows how the EPA is going to handle the issue. The EPA is currently considering new classifications for CO2 storage wells and may develop comprehensive regulations in the next few years. Mr. Frederich indicated that the DEQ would like to move forward on this issue as quickly as possible.

Mr. Rob Hurless, Governor's Office, reported that the Governor has no official position at this time with respect to which agency should regulate CO2 sequestration and storage. Over the lunch break, Representative Lubnau visited with the Governor and learned that the Governor prefers that the DEQ be made the agency responsible for regulating CO2 sequestration and storage.

Mr. Harry Labonde, Deputy State Engineer, expressed some concern over long-term water impacts of CO2 storage but stated that the State Engineer's Office does not believe it has a direct role in the regulation of CO2 storage.

Mr. Mark Northam, Director of the School of Energy Resources at the University of Wyoming, identified the need to define the word "void" in the draft legislation. He explained that there is no "void," rather there is pore space that is usually filled with water or brine which can be replaced by pressurized CO2. Mr. Northam suggested using the term "pore space." Mr. Northam stated that CO2 storage is much different from enhanced oil and gas operations. Enhanced oil and gas operations are on a definable time scale and involve a well-established process. CO2 storage involves unbalancing geologic systems that have been in balance for millions of years. CO2 is much more buoyant than native materials and tends to migrate. The spread of CO2 can take a very long time to reach equilibrium. The process will still be operating long after the laws we put together are gone. When considering who should regulate CO2 storage, Mr. Northam stated that it is a matter of who can best assure long-term monitoring. Mr. Northam also opined that ownership issues should be secondary to the core question of selecting an appropriate site for CO2 disposal. There are many places to inject, but few that are actually appropriate and safe. The assessment must be regional and a single owner should not make the decision. Mr. Northam believes the spread of CO2 over extended periods will usually involve many land owners. Further, the selection of sites will be influenced by the transportation costs of getting the CO2 to the injection site. However, he believes there is acceptable storage for CO2 available for at least 50 years. Mr. Northam warned against proceeding too quickly and advocated for significant modeling, testing and verification. One of his primary concerns is that supercritical CO2 is an excellent solvent. As it migrates into aquifers over the long term, it could carry with it undesirable minerals and substances. An inadvertent discharge of CO2 is one of his smallest concerns. Mr. Northam stated that he is not familiar with the details of Wyoming's sequestration and storage geology, but that he understands that Wyoming has a very large capacity for CO2 storage. The costs of getting the CO2 to Wyoming will be the big issue. When asked by Representative Lockhart about other CO2 storage projects in the world, Mr. Northam stated that liability for those projects has been simple because of the small CO2 volumes, the unpopulated areas in which the sites have been located and the fact that the government has accepted liability for those sites. Mr. Northam advised the Committee to think about the geologic storage of other contaminates, beside CO2. He suggested that, over the long-term, the regulatory scheme we develop for CO2 may be used for other, more dangerous, substances like sulfur dioxide or products from the liquification of coal.

Mr. Jeffery Fine, Enhanced Oil Recovery Institute, explained that the DOE is currently running projects to try to determine the costs of monitoring CO2 storage sites. The costs of monitoring wells is very expensive. He thinks it could be millions of dollars per project. He also warned that a single CO2 storage area could eventually cover a substantial part of an entire county. This means that monitoring will have to be done on a wide-scale and the ownership and land-use issues are going to be complex. However, he acknowledged that injection likely will not take place at a single location. Rather, studies show that CO2 spreads unevenly and so multiple injection sites may be needed to even the flow. The Rock Springs Uplift in Wyoming may require several dozen injection wells and many more monitoring wells. Mr. Fine explained that finding a perfect storage area is not at issue. There will be a small amount of leakage which likely will be acceptable. He also explained that there likely is going to be an incentive for oil field operators to begin storing CO2 as their fields become unproductive. The oil recovery which might result from CO2 injection can help offset the costs. He feels that Wyoming may need legislation to deal with this situation. The Committee discussed the need for eminent domain powers if the storage area is going to be large and involve multiple owners and multiple types of ownership (private property, federal lands, state school lands, etc.). Mr. Northam stated his opinion that the ownership issues should not be as difficult because each storage area, although large, will involve smaller compartments, each with their own injection site.

08LSO-0080.W2, Ownership of subsurface voids

Representative Olsen, seconded by Representative Alden, moved 08LSO-0080.W2, Ownership of subsurface voids, for Committee consideration of the bill. After considering amendments to the bill, the Committee decided to table the bill for the next meeting. Committee members are encouraged to bring amendments to the next meeting in written form. Before tabling the bill, the Committee adopted the following amendments to be incorporated into a revised bill:

Page 1-line 12 Replace the term "voids" with the term "pore space." (LSO staff was given authority to appropriately change the language throughout the bill.)

Page 3-line 32 Delete the amendment to W.S. 34-1-151.

In discussing the amendments to the bill, the Committee asked LSO staff to consider a definition for the term "pore space." The Committee also asked LSO staff to draft a copy of the bill with 3 amendments suggested by Senator Nicholas. These amendments would be added to the end of proposed W.S. 34-1-152. The text of those amendments is as follows:

(c) “Nothing in this section shall be construed to change or alter the common law as of the date of the passage of this section as it relates to the rights belonging to, or the dominance of, the mineral estate.”

(d) “Transfer of the rights to voids under this section shall describe within the transfer instrument the scope of any rights to use the surface estate. The owner of any voids shall have no right to use the surface estate beyond that set out in a properly recorded instrument.”

(e) “Transfers of rights to voids under this section executed and recorded after the effective date of this section which do not specifically describe the location of the voids are null and void and of no force and effect.”

With regard to subsection (e) of the proposed amendment, the Committee asked LSO staff to consider how the location of a pore space might be described. The Committee agreed that a transfer of rights to a storage space should be voidable at the option of the surface owner, rather than void as a matter of law. Further, the Committee agreed that language should be included which mandates that the injector remains liable even if ownership is declared void and reverts back to the landowner.

Although not proposing an amendment to the bill, Senator Sessions questioned whether the statutory right of surface owners to demand security for surface damages in the mining context (W.S. 30-1-119) should be extended to the CO2 storage context.

The Committee asked LSO staff to determine why the words "and waters of this state" are included in proposed W.S. 34-1-202(e), page 5 of the bill. The language is also included on page 1 of the bill.

Although not proposing an amendment to the bill, Representative Buchanan acknowledged that, if CO2 storage rights are given the same superior rights as a mineral estate, then the CO2 storage rights may need to be included in the conservation easement statute, W.S. 34-1-202 (e).

08LSO-0047.W5, Carbon capture and sequestration

Representative Olsen, seconded by Representative Bagby, moved 08LSO-0047.W2, Carbon capture and sequestration, for Committee consideration of the bill. After considering amendments to the bill, the Committee decided to table the bill for the next meeting. Committee members are encouraged to bring amendments to the next meeting in written form. Before tabling the bill, the Committee adopted the following amendments to be incorporated into a revised bill:

Page 5-line 32 After "dioxide" insert ";" and delete the balance of lines 32 and 33.

Page 6-line 21 Delete "will not unduly endanger lives or property" and insert "ís protective of human health and the environment".

Page 6-line 24 Delete "without reasonable notice to interested parties and opportunity for a hearing. The applicant shall be responsible for all costs of this proceeding" and insert : (i) without reasonable notice to the public and an opportunity for public comment; (ii) without reasonable notice to interested parties and an opportunity for a hearing; and (iii) the applicant is responsible for all costs."

Page 12-lines 28-31 Delete entirely.

During the discussion of amendments, Representative Olsen suggested an amendment which would grant the regulating agency the power and authority to charge fees, set by rule, "to effectuate the purpose of this act." After discussion, the amendment was withdrawn, but Representative Olsen agreed to submit to the LSO language that would make the regulation program self-supporting. The Committee discussed whether the injector should be responsible for monitoring and testing, and whether the regulating agency should simply audit those test results, rather than assume the burden of performing the monitoring and testing.

While working this bill, the Committee engaged in considerable discussion regarding which agency, the OGCC or the DEQ, should be primarily responsible for CO2 storage regulation. The Committee acknowledged that allowing the OGCC to regulate injection wells that are classified by the EPA as class 5 wells would not be allowed under the EPA's current grant of primacy. The DEQ currently exercises that primacy. There was discussion about the possibility of petitioning the EPA to grant the OGCC primacy over the regulation of class 5 wells. Representative Throne voiced her opinion that the philosophical basis for the bill fits with DEQ. She, however, believes that the OGCC should determine siting for CO2 injection wells. The Committee and guests acknowledged that most other states seem to be handling the regulation issue by using an entity similar to the OGCC. There was considerable discussion regarding a hybrid scheme for regulation with shared powers between the OGCC and the DEQ. Senator Ross asked that Committee members supporting such a concept circulate a draft that provides for such a hybrid scheme.

Representative Throne distributed a bill that she drafted which provides that DEQ would hold the primary regulatory authority (Appendix 8). Representative Throne stated that this is just a rough, conceptual draft. Representative Lubnau, upon discussion with Representative Throne, recognized that Representative Throne's draft would allow the DEQ to take control and set standards through rules, while the original approach was to allow the Legislature to have the control. Senator Nicholas worries that giving all control to the DEQ will create a permitting process that is very complex, time consuming and might be very expensive to applicants. Representative Throne noted that the DEQ currently sets water permitting standards that allow for a clean and efficient permitting process.

The Committee also discussed which agency would be able to regulate CO2 storage more quickly. The Committee considered whether the OGCC might have the expertise and personnel to start regulating quickly. The Committee acknowledged that the OGCC would have to seek EPA's approval to regulate class 5 wells and there was debate about whether the OGCC should handle environmental quality issues.

The Committee decided additional information is necessary regarding the proper agency to regulate CO2 storage. The Committee asked that the Governor's office, the DEQ and the OGCC talk to each other and inform the Committee, in writing, at least 10 days prior to the next meeting, of any changes that they would like to the revised bill and which agency they believe should regulate CO2 storage permitting. The Committee asked that the agencies indicate how the various regulatory tasks should be divided, if at all, and provide an estimate of the costs of administering the regulatory scheme. The Committee agreed that the recommendations need to be made at the agency director level. Cochairs Ross and Buchanan asked that LSO staff prepare a draft letter to the DEQ and OGCC, for the Cochairs' signatures, requesting the information.

The Committee acknowledged that it would like to propose legislation this session so that the regulatory scheme can be put in place quickly. If nothing is done this session, it likely will be two years before the regulatory process is in place.

Next Committee Meeting

Cochairmen Ross and Buchanan stated the next Committee meeting will probably be held in January, 2008. They asked staff to determine via email the availability of members for a meeting on proposed dates that may be proposed.

Meeting Adjournment

There being no further business, Chairman Ross adjourned the meeting at 5:00 p.m.

Respectfully submitted,

Senator Tony Ross, Cochairman Representative Ed Buchanan, Cochairman

Appendix	Appendix Topic	Appendix Description	Appendix Provider
1	Committee Sign-In Sheet	Lists meeting attendees	Legislative Service Office
2	Committee Meeting Agenda	Provides an outline of the topics the Committee planned to address at meeting	Legislative Service Office
3	Unlocking America: Why and How to Reduce America's Prison Population	Article discusses problems with sentencing and prison overpopulation and proposes alternatives to current systems of sanctions	Mr. Pat Anderson, Director, Board of Parole
4	Proposed law providing for post-conviction relief	Provides a proposal to allow post-conviction relief on the basis on DNA evidence	Mr. Matt Redle, Sheridan County and Prosecuting Attorney
5	Summary of Youth Services of Fremont County juvenile offender intake process	Describes the process used in Fremont County for intake of juvenile offenders	Mr. Chuck Kratz, Director, Youth Services of Fremont County
6	Volunteers of America: Continuum of Care Practices for Wyoming	Provides Volunteers of America's plan for improving juvenile offender services provided in Wyoming	Mr. Jeff Holsinger, President, Volunteers of America for Wyoming and Montana
7	United State Environmental Protection Agency UIC Program Guidance Circular #83	Provides EPA guidance criteria for permitting of pilot projects for carbon dioxide injection experimental technology wells	Representative Tom Lubnau
8	Proposed draft legislation on carbon sequestration regulation	Provides an explanation of the science related to geological carbon sequestration	Representative Mary Throne